Respondents Brief — Train v. Natural Resources Defense Council, Inc.

Supreme Court brief1975

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What actually matters in this document.

Text

* CORRECTED copt 77}

re S$ No. 73-1742 —

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

RUSSELL E. TRAIN, Administrator, United States Envi-

| ronmental _Protection—Ageney,—and—UONITED STATES ~

ENVIRONMENTAL PROTECTION AGENCY,

Petitioners,

Vv.

NATURAL RESOURCES DEFENSE COUNCIL, INC.,

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 FOR RESPONDENTS

RICHARD E. AYRES

1710 N Street, N.W.

Washington, D. C. 20036

Attorney for Respondents

Of Counsel:

EDWARD L. STROHBEHN, JR.

1710 N Street, N.W.

Washington, D. C. 20036

STEPHEN P. DUGGAN

SIMPSON, THACHER & BARTLETT

1 Battery Park Plaza

New York, New York 10004

+ WILSON - EPES PRINTING CO.. INC. - RE 7-6002 - WASHINGTON. D. C. 20001

i ccs

A. The Consequences of Failing to Meet the Act’s

PT hii issvicecsindecs outs cesaos Secccaeacigammsciadaaenh

B. History of the Clean Air Amendments of 1970 ....

i, MI SI cc cnerrectrccecnnscantuscsarccerteccoet.

I OE I oot Wee

Argument:

I. THE CLEAN AIR AMENDMENTS PRE-

II.

EMPT THE STATES FROM ISSUING VARI-

ANCES TO THE TIMETABLES OF COM-

PLIANCE, EMISSION LIMITATIONS, AND

OTHER REQUIREMENTS OF STATE IM-

PLEMENTATION PLANS ....0000..00:.200cccceceeseeeeee

A. This Conclusion Is Compelled by the Lan-

guage and Structure of the Act, and its Leg-

islative History ................. LEDS PRM BS Seales BE

B. EPA’s Proposed Reading of the Statute Has

Been Rejected by the Courts of Appeal that

Have Reviewed the Issue .....................-..202.-.-.

C. EPA Has Abandoned In Its Own Regulations

the Position it Urges on the Court Here ......

D. The Legislative History of the Act Demands

that Postponements Be the Exclusive Means

PGR SEN ante AER Ae saPa ser tne eee

INTERPRETING THE POSTPONEMENT

PROVISION AS WRITTEN IS CRUCIAL TO

THE ATTAINMENT OF THE CONGRES-

SIONAL, PURPORB ici bacsissercsnnceaphince

A. Pre-emption of State Variance Laws By the

Federal Postponement Procedure Would Not

Increase -the.Burden of Administering the

COUN Fel ee ok

INDEX—Continued

Page

B. The States Did Not Rely on EPA’s Erroneous

Interpretation of § 110(f) —...... ii Ditichsielweencs 45

1. EPA’s Interpretation Was Not Needed to

Induce the States to Choose the Most Ex-

Lit teal hikal D: 6

2. EPA's Interpretation Had No Effect on

the Attainment Dates and Compliance

Schedules Chesen by the States ............... 46

Conclusion .......... UE SRE ee 0 ERR” TDS 50

Teme OF Ge, Come AM, BEGGS oon ving csocgiionkeesceccecse. ieee 51

~~.

j }

III*

CITATIONS

Cases: ae Page

‘Getty Oil Co. Vv. Ruckelshaus, 342 F.Supp. 10006

(D.Del. 1972), remanded with directions, 467

F.2d 349 (3rd Cir. 1972) cert. denied, 41

U.S.L.W. 3392 (Jan. 15, 19738) .............2.......2--.:.-. 29, 41

Natural Resources Defense Council, et al., V. En-

od ae A O42

Liroumenutal Protection yer toi 2d Ge

~ F.2d

BAR SITE D siidititncencsosscbrocnnpiasneatabaieuessencdvcsinesinies 25

Natural Resources Defense Council, et al., Vv. En-

vironmental Protection Agency, 478 F.2d 875

CRI Ts BOD eiiescteidicenccireonaases- ....... 16, 28, 30, 41, 42, 48

Natural Resources Defense Council, et al., Vv. En-

vironmental Protection Agency, 494 F.2d 519

SEE Wt FOOD oipaecpdinesninislektdsannnenie ste sranndindons tobe 16, 28

Natural Resources Defense Council, et al., Vv. En-

vironmental Protection Agency, 489 F.2d 390

(Gee Car, 3074) cs. --.-.-2.-2:.--.-.-3-...86, 2B, 2, 40, 41, 42

Natural Resources Defense Council, et al., Vv. En-

vironmental Protection Agency, 483 F.2d 690

I A ipo scr rnminrantsaldacwmensedannosrorencee 16, 28

Natural Resources Defense Council, et al., ¥. En-

vironmental Protection Agency, No. 72-2145

(9th Cir. Nov. 11, 1974)... 28

Sierra Club vy. Ruckelshaus, 344 F.Supp. 253

(D.D.C., 1972) , aff'd per curiam, without opinion

-by the D.C. Court of Appeals, aff'd sub nom. by

an equally divided Court, 412 U.S. 541 (1973). 31

Statutes and Regulations:

69 Stat. 322 ..... gear ie

‘alien 1(a), 42 U.S.C. 1857 (a) . ‘aka

ig saletemedd hee vic satwercevesbswennrovenonaadeene

Be I Bi ecrcchestniononnpesnciics Sscdetinceiensstercedsienccocas

RN sae itecisccasedesntienaooersnpurnnenvoce

490. Sled is arcseticenlipi ate ed ieck eddies onesicssowndcisivianknniecs

Air Quality Act of 1967, 81 Stat. 485, 42 U.S.C.

ree ae Oe, es ncrsenese ke ae

. Sore a or er. eee ..................-.... 12

NATAAAAA AHR

CITATIONS—Continuéd

Page

Clean Air Amendments of 1970, 84 Stat. 1676, 42

chk Sees OE Oe 8

Section 107(c), 42 U.S.C. 1857¢e-2(¢) —............ 7

Section 108(a), 42 U.S.C. 1857¢-3 (a) -..........: ~ 8

Section 108(a) (1), 42 U.S.C. 1857e-3 (a) (1).. 8

Section 108 (a) (2), 42 U.S.C. 1857¢-3 (a) (2)... 8

Section 109, 42 Ud@eC. 1857c-4 ........ ee. 9

Section 109(a) (1), 41 U.S.C. 1857c-4 (a) (1)... 8

Section 109(a) (2), 42 U.S.C. 1857c-4 (a) (2).. 8

Section 109(b), 42 U.S.C. 1857¢-4(b) —............ 2

Section 110(a), 42 U.S.C. 1857c-5 (a) .............. 22

Section 110(a) (1), 42 U.S.C. 1857c-5(a) (1).. 8, 26,

Section 110(a) (2), 42 U.S.C. 1857e-5(a) (2). 8, 9

Section 11U(a) (2) (A), 42 U.S.C. 1857¢-5 (a)

CRPOAT ee 10, 34, 37, 46

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

(a) CB) Asin ie es 26

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

1B oa a ck 13, 26, 28, 47

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

(ZU) ua 26, 34

Section 110(a) (3), 42 U.S.C. 1857c-5 (a) (3)... 8, 24-

25, 26, 28, 34

Section 110(a) (3) (B), 42 U.S.C. 1857¢-5 (a)

| DE) | ER MCMEeA chin weer ie cnretety Ca Rie RS eM 27

“ Section 119(¢’. 42 U.S.C. 1857¢-5(c) ......8, 22, 46, 50

Section 110(c) (1) (C), 42 U.S.C. 1857¢-5(c)

OR Tao i ee es 8, 26, 28

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

Section 110(e), 42 U.S.C. 1857c-5(e) ™, 16, 25, 35,

46-47

Section 110(f), 42 U.S.C. 1857¢-5.f) 1, 8, 14, 15,21,

23, 25, 45, 47

Section 110(f) (1) (A)-(D), 42 U.S.C. 1847c-

5(f) (1) (A)-(D)

CITATIONS—Continued

section 111, 42 U3. 185766 —3........... 27

Section 111 (a) (1), 42 U.S.C. 1857c-6(a) (1).. 8

Section 111(b) (1) (A), 42 U.S. C. 1857c-6 (b)

(Ad oie. 8

Section 111(b) (1) (B), 42 USS. C. 1857c-6 (b)

OF UE vic ie 8

Section 112. 22 US: ee 27

Section 112(a) (1), 42 U.S.C. 1857¢-7 (a) (1)... 8

Section 112(b) (1) (A), 42 U.S.C. 1857c-7 (b)

pS ge eee opie SNe geet arene meena

Section 112(b) (1) (B), 42 U.S.C. 1857c-7 (b)

SPURS bi

ie.)

Section 113(a) (1), 42 U.S.C. 1857-8 (a) (1) ..

Section 113(a) (2), 42 U.S.C. 1857c-8 (a) (2).

Section 113(a) (3), 42 U.S.C. 1857¢-8 (a) (3)..

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

Section 202 (a), 42 U.S.C. 1857f-1(a) 00.0.0...

Section 202(b), 42 U.S.C. 1857f-1(b) ..............

Section 202(b) (1), 42 U.S.C. 1857f-1(b) (1) ..

Section 202(b) (2), 42 U.S.C. 1857f-1(b) (2) ..

Section 202(b) (4), 42 U.S.C. 1857f-1(b) (4)

Section 207(c), 42 U.S.C. 1857f-5a(c) .........

Section 211(c), 42 U.S.C. 1857f-6(c) ...............

» Section 212(a), 42 U.S.C. 1857f-6e (a)... :

Section 212 (a) (4), 42 U.S.C. 1857f-Ge(a) (4).

Section 212(d) (3) (F), 42 U.S.C. —

(3) (F) . :

Section 231 (a), “42, U. S. Cc. 1857f-9(a) ahaa s.

Section 231(a) (1), 42 U.S.C. 1857f-9(a) (1)...

Section 231 (a) (2), 42 U.S.C. 1857f-9 (a) (2).

Section 304, 42 U.S.C. 1857h-5 ................-.-.....

Section 313, 42 U.S.C. 1857j-2

Energy Supply and Environmental Coordination

Act of 1974, 88 Stat. 256 (1974)... 27

Ga. Code Ann. 88-912. © <i. “Ee 13, Appendix

40 C.F.R. 51.1(g) 2 io Ad alos Dina cin ees Sante 22

COMmmBmDDmDnDnnDnwDdowWDdD Ww Ww OO

Oo © OC © CO OO

CITATIONS—Continued

Page

Re 49

ee i 49

ee a 43

eee ee 6 a. 31, 42

at | 2S | nine” Aled 43

ee See OD Ee RoE I 43

ne 47

Oe aa eo a 10

40 C.F.R. 51.15(a) (2)... “hptice Maan on pee ene nc cm 47

ee Ge ee I 37

ee i es a 31, 37

Oe ee 46, 47

Miscellaneous:

Ayres, Richard E., Enforcement of Air Pollution

Controls on Stationary Sources Under the Clean

Air Amendments of 1970, (forthcoming) 4

ENVIRONMENTAL LAW QUARTERLY — (Fall,

2 ARES eee RIE RRE NORE con ee niece co eae wep) eae Pe ee ee 11

BNA Environmental Reporter, Federal Laws

Bi: 1000-08 cs... See © Ca a irae a untae eee 7

Chapman, et al., Power Generation: Conservation,

Health, and Fuel Supply, .1 Report to the Task

Force on Conservation and Fuel Supply, Tech-

nical Advisory Committee on Conservation of

Energy. National Power Survey, U.S. Federal

Power (ommmienon, 1975 4

116 Cong. Rec. S16091 (daily ed., Sept. 21, 1970). 40

116 Cong. Rec. 833120 (daily ed., Sept. 22, 1970)... 23

116 Cong. Rec. $42384-5 (daily ed., Dec. 18, 1970) .. 38

37 Fed. Reg.:

ye Se ROG ts RY eet eereS ATED caetececngs 46

I a ce eee ees 46

a ¢ Se EES RR Eeero es, Wave ro ep Sacre nea C Sere 46

TO re i i ee. 46

a a es 46

COTE CAME LET TRON ARIE ial

angle Park, North Carolina (1973) —~-........

VII .

CITATIONS—Continued

Page

i S's pee ARE RP ie oO LO y Can eR Sa ny Once 32

ee a a a 49

38 Fed. Reg. :

OU a ee a ee 32

| A RRRSS ESE silty ere meatier oTaDn ene oie ana Rnepreme Uses sorte 43

BOS i i 43

39 Fed. Reg

14728 43

Dee oo a 43

oss ca atone 32

SIGN oe i as 32

| BURA Sn mee me eee m ioe tia Soe agar Lar e keaton 32

$4533-37 | ........... SBD I AES. Cr mec ELIS 16, 31, 33, 41

| nf ERRatarsb tek Reseemerersceencar rar mW once ens ees 16, 31, 33, 41

Hearings on S. 3229, S. 3466, S. 3546 before the

U.S. Sen. Comm. on Public Works, Subcomm. on

Air and Water Pollution, 91st Cong. 2d Sess.

(1970) . ae : ...1, 8, 10, 12, 22, 23

Hearings, “Implementation | of ‘the Clean Air ‘.

Amendments of 1970,” before the i Ss. S. Sen.

Comm. on Public Works, Subcomm. on Air and

Water Pollution, 92nd Cong., 2d Sess. (1972). 12

H.R. 17255, 91st Cong., 2d Sess. (1970) _........_. 8

Section 106 fe) (2) (0) G2) 10

H. Rep. No. 91-1146, 91st Cong., 2d Sess. (1970) 8, 10

H. Rep. No. 91-1783, 91st Cong.. 2d Sess. (1970) 36

O’Fallon, John E., Deficiencies in the Air Quality

Act of 1967, 33 LAW AND CONTEMPORARY PROB-

LEMS 275 (1968) _ —. 11

Rall, David P., A Review of The Health Effects of -

Sulfur Oxides, National Institute of Environ-

mental Health Services, N.I.H., Research Tri-

VIII

CITATIONS—Continued

Page

Report by the Coordinating Committee on Air

Quality Studies, National Academy of Sciences,

Prepared for the Committee on Public Works,

U.S. Senate, Air Quality and Automobile Emis-

ston Control, Voiume I (1974) _.... 3

S. 3466, 91st Cong., 2d Sess. (1970) 8

Section 7(a) gs beeper pinta ei 10

S. 3546, 91st Cong., 2d Sess. (1970) 10

was... 10

S. 4358, 91st Cong., 2d Sess. (1970) 0. 10

Section 111(a) (2) (A) sais 10, 36

Section 1ll(e) _......__... ei a - 34

Section 111(f) tockachesiicteicehic tilt aecubuiaboa ances 34, 35

S. Rep. No. 91-1196, 91st Cong., 21 Sess. (1970) 5, 10,

12, 34, 36, 42

US. Council on Environmental Quality, Environ-

mental Quality: The Fourth Annual Report of

the Council on Environmental Quality (1973)... 3, 5

U.S. Department of Health, Education, and Wel-

fare, “A Digest of State Air Pollution Laws,”

Public Health Service Pub. 711, (1966) 6

U.S. Environmental Protection Agency, Office of

Air Quality Planning and Standards, Research

Triangle Park, North Carolina, State Air Pollu-

tion Implementation Plan Progress Report,

January 1 to June 30, 1974 (1974) _.... 44

U.S. Environmental Protection Agency, The Cost

of Clean Air: Annual Report of .ne Adminis-

trator of the Environmental Protection Agency

to the Congress of the United States (1974) . 5

U.S. Environmental Protection Agency, National

Environmental Research Center, Research Tri-

angle Park, North Carolina, Summary Report

on Suspended sulfate and pees Acid Aero-

sols (1973) cena 3

CITATIONS—Continued

U.S. Environmental “Protection Agency, Nation-

wide Air Pollutant Emission Trends, 1940-

1970, AP-115 (1973)

Page

a ei a

;

reget. Sas |

IN THE

Suprenw Court of the United States

OCTOBER TERM, 1974

No. 73-1742

RUSSELL E. TRAIN, Administrator, United States Envi-

ronmental Protection Agency, and UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Petitioners,

Vv.

NATURAL RESOUKCES DEFENSE COUNCIL, INC.,

SAVE AMERICA’S VITAL ENVIRONMENT,

JANEY WEBER, SUSANNE ALLSTROM,

Respondents.

On Writ of Certicrari to the United States Court of Appeals

for the Fifth Circuit

BRIEF FOR RESPONDENTS

STATEMENT

This case involves the interpretation of §110(f) of

the Clean Air Amendments of 1970, 42 U.S.C. § 1857c¢-5

(f), which addresses the treatment of air.pollution sources

that fail to meet previously agreed-to timetables for com-

pliance with the requirements of State Implementation

Plans adopted under the Act. Respondents contend that

$110(f) should be read-as written, so that all requests

by individual sources for additional compliance time

should be tested by the standards of the federal law.

The government, though it published regulations largely

in agreement with this view on September 26, 1974, now

urges that such requests should be tested by the far more

lax standards and procedures of State variance laws,

unless, in the judgment of the Environmental Protection

Agency (“EPA”), such a request would cause a viola-

tion of a National Ambient Air Quality Standard. This

condition appears nowhere in the Act, and is utterly

inconsistent with its history, structure, and policies. If

adopted, it would undermine the most crucial and in-

novative aspects of the Act, sap its effectiveness, permit

continued increases in emissions, and thus assure ad-

ditional deaths, disease and economic injury among mil-

lions of American citizens.

A. The Consequences of Failing to Meet the Act’s

Requirements.

The Clean Air Amendments are strong legislation,

commensurate with Congress’ sharp percepiion of the

gravity of the threat to public health and the environ-

ment posed by the rapidly increasing emissions of pol-

lutants. For example, emissions of sulfur oxides, one

of the most common and deadly pollutants, from steam

electric power generating facilities increased seven-fold

in the period 1940-1970, from 3 million tons to 20 mil-

lion tons per year nationally, and in recent years have

been rising by over 1 million tons each year.’ If the

accelereting growth in emissions of this pollutant from

power plants continues as it has, the Environmental

Frotection Agency projects that sulfur oxide emissions

'U.S. Environmental Preteetion Agency, Nationwide Air Pol-

lutant Emission Trends, 1940-19706, AP-115 5, Table 3 (1973).

will reach 41 million tons per year by 1980, thirteen

times their 1940 levels.’

The full cost to society of these emissions is, obviously,

difficult to establish exactly, but the estimates of the

monetary toll alone show it to be substantial. In 1978,

the President's Council on Environmental Quality

(“CEQ”) estimated the quantifiable costs of air pollution

in 1968 at some $16 billion annually,’ a figure which is

generally conceded to be roughly accurate.‘ Such figures

cannot, of course, fully express the suffering by those-

afflicted with pollution-induced lung and heart diseases.

A recent analysis, done jointly by Cornell University

economists, utility industry representatives, and EPA

staff for the Federal Power Commission estimated that

unless power plant emissions are greatly curtailed, the

continued growth in generating capacity will assure

violation of the Clean Air Act’s standards. The analysis

concluded that the failure to meet the National Air

Quality Standards would have the gravest consequences

for public health:

The adverse health effects of not meeting clean air

standards will be considerabie. The number of pre-

mature deaths may reach over 6,000 per year by

2 U.S. Environmental Protection Agency, National Environmental

Research Center, Summery Report on Suspended Sulfates and

Sulfuric Acid Acrosols, Research Triangle Park, North Carolina

(1973), 39, quoting “Abatement of Sulfur Oxide ‘Emissions

from Stationary Sources,” National Academy of Engineering.

COPAC-2.

*U.S. Council on Environmental Quality. Environmenxtal Quality:

The Fourth Annual Report of the Council on Environment Quality

47-78 (1973).

*Report by the Coordinating Committee on Air Quality Studies,

National Academy of Sciences, prepared for the Committee on

Public Works, U.S. Senate, Air Quality and Automobile Emission

Conirol, Volume I, 121 (1974).

ee Cath tee

1980 and the total excess between ~975 and 1980

could exceed 25,000.’

It is this sort of information which led the Senate Public

Works Committee, primary authors of the 1970 Amend-

ments, to summarize the reasons for their proposed

Amendments as follows:

5 The Report went on to describe the other effects that could be

expected if the National Standards were not met:

Each year an average elderly person will experience an unneces-

sary 5 to 10 days when his chronic heart and lung disorders

wili be perceptibly aggravated. If standards are not met, the

excess number of aggravation days for our senior citizens

would be 20 to 30 million days each year and total over

160 million days during the years 1975 to 1980. Each year a

typical asthmatic might expect one to two unnecessary usthma

attacks. If standards are not met, the excess number of asthma

attacks would be 6 to 10 million each year and could total over

50 million during the years 1975 through 1980. Each year

otherwise healthy children would experience 400 to 900 thous-

and more common but severe acute respiratory disorders like

croup, acute bronchitis and pneumonia. Between 1975 and 1980

children would be burdened with more than 4,500,000 excess

acute respiratory illnesses if standards are. not met. If stand-

ards are not met, adults would be burdened more frequently

with persistent chronic respiratory disease symptoms. In 1975

an excess of more than 900,000 cdults would be involved and -

by 1980 an excess of over 1,500,000 adults might be expected

to report persistent chronic respiratory disease symptoms.

It concluded:

In summary, present rough estimates conclude that substan-

tial excess adverse health effects can be expected each year

if standards are not met: thousands of premature deaths,

millions of days of illness among susceptible segments of the

population, hundreds of thousands of needless acute lower

respiratory illnesses in otherwise healthy children and hun-

dreds of thousands of chronic respiratory disorders among

adults.

Chapman, et al... Poiwer Generation: Conservation, Health, and Fuel

Supply, A Report to the Task Force on Conservation and Fuel

Supply, Technical Advisoru Committee on Conservation of Energy.

National Power Survey. U.S. Federal Power Commission 17-18

(1973).

The Committee’s concern with direct adverse effects

upon public health has increased since the publica-

tion of air quality criteria documents for five major

pollutants . . .. These documents indicate that the

air pollution problem is more severe, more perva-

sive, and growing at a more rapid rate than was

generally believed.

S. Rep. No. 91-1196, 91st Cong., 2d. Sess. 1 (1970).

At the same time, those who have studied the problem

generally agree that the cost of controlling air pollution

is less than the cost it imposes on the nation. The CEQ

estimates that unless pollution is controlled, the damages

from all sources of air po!lution will amount to some

$24.9 billion annually by 1977." Yet EPA estimates that

the cost of abating air pollution will not exceed $14

billion annually for the next five years.’

B. History of the Clean Air Amendments of 1970.

The 1970 Amendments represent a major break with

prior federal air pollution control efforts, occasioned by

the accelerating threat to human health and welfare and

Congressignal dissatisfaction with previous efforts to con-

trol this threat. For 15 years, through four separate

pieces of legislation, Congress sought to solve this public

health problem by granting federal and state adminis-

trators wide discretion. By 1970 it was clear that these

attempts had failed. The air pollution problem was

worsening at an increasing rate. Thus the 1970 Amend-

ments reflect deep Congressional impatience with the long

history of inaction by both State ‘and federal bureaucra-

® U.S. Council on Environmental Quality, Environmental Quality:

Tine Fourth Annual Report of the Council on Environmental Quality

78 (1973).

"U.S. Environimeiita! Protection Agency, The Cost of Clean Air:

Annual Report of the Administrator of the Environmental Protec-

tion Agency to the Congress of the United States 1-4 (1974).

cies, and are intended to restrict substantially the range

of administrative discretion and State authority.

Prior to 1970, the federal air pollution legislation was

a near textbook medel of federalism. The first major

federal act dealing with the problem was the Act of

July 14, 1955, 69 Stat. 322 (“1955 Act”). This Act

was «an invitation to the States to act: it set out the

problem and promised federal support, but specifically

gave responsibility for standard-setting and enforcement

to the States.

After eight years of State inaction, Congress passed

the Clean Air Act of 1963. 77 Stat. 392 (1963) (“1963

Act’). The legislature recognized that since. 1955 there

had been accelerating growth in the air pollution prob-

lem. 1963 Act $1(a), 77 Stat. 392, 42 U.S.C. § 1857

‘a’. In light of the deteriorating situation, Congress

gave the federal government its first. greatly limited.

enforcement power, a complex and unwieldly “conference”’

procedure for interstate pollution problems, which could,

with sufficient perseverance, lead to court action. 77 Stat.

396, presently 42 U.S.C. $1857(d), as amended. Two

years later; Congress increased slightly the power of the

federal government to take action to abate pollution,

giving the federal authorities the authority to begin the

conference and hearing process without receiving a formal

request from the States. Amendments to the Clean Air

Act, 79 Stat. 996 (1965). t

By 1966 only 26 States had established legislative con-

trols over air pollution. Many of those States’ statutes

were riddled with variance provisions that undermined

effective action to clean the air. U.S. Depart. of Health,

Edueation, and Welfare, “A Digest of State Air Pollu-

tion Laws.” Public Health Service Pub. 711, at ii (1966).

As 1 result of continuing State failure to act, Congress

once again increased the federal responsibility for con-

trolling air pollution by passing the Air Quality Act of

1967, Si Stat. 485 11967) (1967 Act”). Federal au-

thorities were to designate “Air Quality Control Re-

gions” and to publish air quality “criteria”—compilations

of the results of scientific studies of the effects of variou-

pollutants on human health and welfare. 81 Stat. 490.

The 1967 Act stil! provided State and federal adminis-

trators wide discretion. For example. the federal govern-

ment was given eighteen months merely to designate oe

boundaries of Air Quality Control Regions MAQC R’s”

and asked to compile the air quality “criteria” ond

ments only as soon as practicable. 81 Stat. 490.

But the National Air Pollution Control Administration

(*NAPCA”) failed to carry out even these first minimal

steps towards air pollution control with the anticipated

dispatch. By the end of 1968 eviteria documents had

appeared for only two of the ‘six most prevalent pollu-

tants. After nearly three years, NAPCA reported to

Congress in 1970 that it~had managed to designate only

twenty-five Air Quality Control Regions.’ Only 12 en-

forcement actions were ever undertaken during the three

years of the Act's life

As the continued failure of federal and State ad-

ministrators to act became manifest, the United States

‘Congress addressed itself again. for the fifth time in

* The criteria document for suifur oxides first appe rer in 1968,

and was reissued in 1970, 1S. Dept. of Health. Education. and

Welfare, Public Health Seryics AP-50; the one fer particulate

matter was issued in January of 1969, as AP-49. During the

hearings on the 1970 Amendmenis, Senator Randolph remarked

acidly on the fact that publication of three additional eriteri ia docu-

ments occurred only when C ongress convened hearings. Hearings on

5. 2229, S. 3466, 5546 before the US. Sen. Comm. on Public

Yorks, Subcomm. on Air and Water Pollution, 91st CongZ 2d Sess.

126 (1970) [liereinafter. “Sen. Clean Air Amendments Hearings” |.

“dd. By contrast. under the 1970 Aet AQCR’s were to he de sig-

nated within 90 days, § 107(¢), 42 USC. § 1857¢-2)¢). As a result

the total number ef AQCR's vose in three months to » 247.

BNA Environment Reporter, Federal Laws 41:1201-65.

7 _

8 ‘

15 yeurs, to the goal of protecting public health and

welfare from fhe effects of air pollution. The Clean

Air Act Amendments of 1970, 42 U.S.C. 1857 et seg.

Rejecting. Administration '' and House“ bills that

would have largely perpetuated fhe. tradition of granting

wide discretion to State and federal administrators, the

Congress chose in 1970 to limit the discretion that had

undermined previous efforts to abate pollution. Unlike

previous legislation, the 1970 Amendments are studded

with explicit deadlines for action '* and s»ecifically ar-

ticulated standards for decisions.'' If the States fail to

act as required, EPA must step in with federal regula-

tions.’ If inaction continues, EPA is directed to take

over State pollution control programs and to use its

greativ increased enforcement powers.’ In case either

EPA or a State government fails to discharge its duties,

S. 3466, printed in Sén. Clean Air Amendments Hearings,

supra 26 et seq.

H.R. 17255. H Rep. No. 91-1146, 91st Cong., 2d Sess. 26 et seq.

(1970). x)

See, e.g §108%&)(1) and (2), 42 U.S.C. $1857¢-3(a)(1) and

(2); $109(a)(1) and (2), 42 U.S.C. §$1857c-4(a)(1) and (2);

$110(a)(1), €a)(2), CevC1)EC), 42 US.C. § 1857e:5(a) (1),

(a9 (2), (ed): 1)¢C), $1110b)(1)(A) and (B), § 1857¢e-6(b) (1) (A)

and (B); §$112(b)(1)(A) and (B), 42 U.S.C. § 1857¢e-7(b) (1) (A)

and (Bi: $ 1(ai12), 42 U.S.C. § 1857¢-8(a) (2); § 202¢b) (1),

(2) and (4), 42 U.S.C. § 1857f-1 (b) (1), (2) and (4) ; § 212 (d)(3)

(Fo, 42 U.S.C. § 1857f-6e(d) (SwCF) 5° § 281(a)(1) and (2), 42

U.S.C. §$ 1857f-9(a)(1) and (29) § 3138, 42 U.S.C. § 1857j-2.

't See, e.g., $108(a), 42 U.S.C. § 1857¢e-3(a) ; § 109(b), 42 U.S.C.

§ 1857c-4(b); $ 110(a) (2), (a) (3), (e), (e)-and (f); 42 U.S.C.

$ 1857ce-5(a) (2), (ad(3), (e), Ce) and (f); §111(a) (1), 42 U.S.C.

$ 1857c-6(a) (1); §$ 112(a) (1), 42 U.S.C. § 1857e-70a) (1)/; § 118(a)

(1), (2) and (3), 42 U.S.C. $1857e-8(a)(1), (2) and \(3) ; $ 202 .

(ay and ¢b}, 42 U.S.C. § 1857f-1(a) and (b); § 207(c); 42 U.S.C.

S$ U857P-5ate): $211 (ce), 42 U.S.C. § 1857f-6e(¢) ; § 212(a)(4), 42

_ U.S.C. §$ 1857f-6e(a)(4)-; and § 231(a), 42 U.S.C. § 1857f-9(a).

™$110(e), 42 U.S.C. § 1857¢-5(e).

"S115, 42 ULS.C. § 1857-8.

the Act gives citizens the right to sue for injunctive

relief in federa! court."

C. The Regulatory Scheme.

~In drafting the Clean Air Amendments, Congress

drew upon its 15 years of experience to fashion a regu-

latory ssheme designed to prevent the administrative

backsliding that had gone before, and tailored to the

special reguatory problems posed by the physical nature

of the air pollution problem,

The vehicle for the attainment of air quality protect-

ing publie health and welfare is the State Implementation

Plan. $110tai(21, 42 U.S.C. § 1857¢e-5(ai (2). The

.purpose of this document is to deseribe the mensryes

needed to curtai! air pollution, and to force the State to

bind itself to take these measures.

~The statute requires the Environmenta! Protection

Agency to promulgate regulations establishing National

Primary and Sc conden Ambient Air Quality Standards,

indicating concentrations of pollutants in the general out-

door (“alfabient”) air just below those that have been

demonstrated to have adverse effects on people (Primary

Standards) and the remainder of the environment ( Sec-

ondary Standards!. $109. 42 U.S.C. £ 1857¢-4. These

levels are assumed, for purposes of the law. to con- -

stitute thresho!d concentrations below which damage does

not occur. '~

7 $304, 42 U.S.C. § 1857h-5.

~The assumption that such thresholds exist must be seen as

#2 matter of regulatory convenience, cather than scientific fact.

Congress was informed, even as it considered the Clean Air Amend-

ments, that the scientific community doubted the assumption, be-

lieving it more likely that air pollutants caused injury to publie

health at any concentration in the ambient air. Dr. Middleton,

then head of the National Air Pollution Control Administration

(EPA's predecessor with respect. to air pollution control), for

example, told the Senate Subcommittee members that in his opinion

One of the crucial innovations c” the Amendments is

the requirement that the States commit themselves, in

their State Implementation Plans, to a stated deadline

for the attainment of eaéh type of Standard. In the

case of Primary Standards, protecting public health, the

State must:attain the Standard ‘as expeditiously as

practicable,” but in any case no more than three years

from the federa! approval of its ‘Plan.’ In the case of

the thresholds then under consideration were probably artifacts of

our present scientific knowledge :

- We know from the criteria published for sulfur oxides, that at

certain levels definite adverse effects occur in the lung. We,

also know that at a little lower level there are’ more subtle

effects on the action of the lung, and that below that some

enzyme system begins to fail or to function improperly.

The no-eifect level would have to be somewhere below that, but

as science progresses, it is very likely that we are going to

find still other body chemical systems that are being affected,

so the no-cffect level always corresponds, you might say, to the

limitations of scientific knowledge in this area. [emphasis

supplied. }

Sen. Clean Air Amendments Hearings, supra, 1490.

This is one reason why some States considered it prudent to

seek to attain air cleaner than the National Standards, and why

both Congress and EPA encouraged this quest. $116, 42 U.S.C.

§$ 1857d-1, and 40 C.F.R. §51.18(d).

'’ The history of this requirement indicates that it was increas-

ingly tightened as the bill progressed through the Congress. The

Administration's original bill would have required the attainment

of Standards. only within “a reasonable time.” S. 3466, §7(a),

printed at Sen. Clean Air Amendments Hearings, supra, 37. The

original bill proposed in the Senate Subcommittee on Air and

Water Pollution contained identical’ language, as did the House bill.

S. 3546, $4, which would have amended §108(c) of the 1967 Air

Quality Act, printed at 7d., 49; H.R. 17255, $ 108(¢)(1)(C)(i),

printed at H.R. Rep. No. 91- 1146 36. $1970).

The bill finally passed by the Sen hate was stricter, but still less

stringent than the Act itself. It would have required the attain-

ment of the Standards “within three vears” of the date of the ap-

proval of the State Plan. S. 4358, § 111(a)(2)(A), printed in S.

Rep. No. 91-1196, S1st Cong., 2d Sess. 68, 87 (1970).

{| Footnote continued on page 11]

Secondary Standards, the State must specify in its Plan

a- “reasonable time” for. attainment. § 110(a)(2)(A),

42 U.S.C. S$ 1857e-5(ai (2) (A).

Experience with previous federal legisiation demon-

strated forcefully, nowever, that ambient air quality

standards were not sufficient alone to regulate sources of

pollution.“ Because the air is continuously moving, mix-

ing pollutants emitted from sources over very large

areas,*' it is impossible except under very rare circum-

stances to relate the air quality at any given spot to the

emissions frem any given polluter with sufficient certainty

‘to satisfy the fourt-room standards of proof. For this

reason, the Clean Air Amendments also require each

State to adopt enforceable emission limitations, for each

general category of source, specifying guantities of pol-

lutants that may be releasél at the smokestack.“ These

' [Continued | :

The Conference Committee further tightened these deadlines, and

the Amendments as passed require each State to choose a dead-

line for attainment that is “as expeditious as practicable but (sub-

ject to subsection (e)) in no case later than three years from the

date of approval.” §110(a)(2)(A), 42 U.S.C. § 1857¢-5 (a) (2)(A).

““ This point was made virtually from the time of passage of

» the Air Quality Act of 1967, which required the States to adopt only

ambient air quality standards. See, e.g., John E. O'Fallon, De-

ficiencies in the Air Quality Act of 1967, 33 LRW AND CONTEMPO-

RARY PROBLEMS 275 (1968). For a recent discussion of this point,

see Richard E. Ayres, Enforeement of Air Pollution Controls on

Stationary Sources Under the Clean Air Amendments of 1970,

(forthcoming) 4 ENVIRONMENTAL LAW QUARTERLY-——( Fall, 1974).

“1 Rall, David P., A Review of the Health Effects of Sulfur Oxides,

National Institute of Environmental Health Services. N.I.H., Re-

search Triangle Park, North Caroling 22 (1973). Also, U.S. En-

vironmental Protection Agency, National Environmental Research

Center, Summary Report on Suspended Sulfates and Sulfuric Acid

Aerosols, Research Triangle Park North Carolina p. a-b, (1973).

2 The Report of the Senate Committee made this point very

ce! vcly:

Because attainment of ambient air quality is possible only

through the enforcement of precise and objective emission

emission limitations are the tools for attaining the goal

of healthful air quality... To determine what emission

limitations would be necessary, the States first calculated

the degree to which the Nationa! Ambient Air Quality

‘Standards were being exceeded in each of the natural

airsheds within their territory..! On the basis of these

calculations. each State then adopted uniform emission

limitations for various relatively homogeneous classes of

polluting sources throughout each airshed. or throughout

controls the Committee bill would delete the enforcement. re-

quirement for the abatement of violations of the air quality

standard. The precise and objective emission controls “subject

to enforcement” would include but not be limited te ‘emission

requirements, emission standards, standards of performance,

prohibitions of emissions, schedules and timetables of compli-

ance and other requirements for recordkeeping and the’ in-

stallation of monitoring equipment.

S. Rep. No. 91-1195, 91st Cong., 2d Sess. 21 (1970). See also,

Id., 12. and testimony of Terry L. Stumph and Robert L. Duprey,

of the National Air Pollution Control Administration, before the

Senate Subcomm. on Air and Water Pollution, Sen. Clean Air

Amendments Hearings, supra, 397 (1970).

The Congressional intent to use emission limitations as the reg-

ulatory basts of the 1970 Amendments was also discussed at length

in the 1972 Senate Oversight Hearings on the Act. See Hearings.

“Implementation of the Clean Air Ainendments of 1970," before

the Senate Comm. on Public Works, Subcomm. on Air and Water

Pollution, 92nd Cong., 2d Sess. 180. 207-209, 244, 268-271 (1972).

Emission limitations may take various forms, depending on the

kind of industry being regulated and the most efficacious methods

for reducing ifs offuent. Some emission limitations prescribe the

quantity er welgnt of pollutants per pound of material processed

that muy be emitted from a factory’s smokestack, leaving entirely

up to the industry the technicue to be used to comply with the

limitation. Some specify the allowable pollutant concentration in

the fuel used. Others, in industries such as steel manufacturing,

specify that a narticular process or procedure be used in order to

reduce omissions.

The 1967 Air Quality Act first required the States to designate

the natural airsheds within their boundaries for the purposes of air

pollution control. These areas are known as Air Quality Control

Regions (*AQCR™:. $107, 42 U.S.C. § 1857¢-2.

the State as a whole. These easily enforceable emission

limitations, rather than the ambient air quality standards.

establish the actual degree of contro! that eazh source of

_ pollufjon must undertake.

Some regulated sources were, of course, already closer

to meeting the emission limitations that applied to them

than others at the time the State Implementation Plans

were adopted. In order to provide the flexibility needed

to take account of these differing circumstances, the Act

required States to negotiate individual compliance sched-

ules for meeting the general emission limitations for each

pollution source. $ 110(a!(2)1(B), 42 U.S.C. S$ 1857e-5

(a'(2)(B). Compliance schedules extending over more

than 12 months included enforceable “increments of prog-

ress,” in order to assure that the source does not fall

behind in taking the required contro] actions. 40 C.F.R.

§$ 51.15(¢c), App. 9.

If an individual source fails to meet the negotiated

timetable, the regulatory agency must decide whether to

authorize additional time for compliance or subject the

source to jeopardy ,of enforcement action. This case

presents the question of which level of government Con-

gress intended to make this decision, and what criteria

are to be used to decide whether a source shall be given

additional time, even after it has failed to meet a

previous!y agreed-upon compliance schedule. Under the

State laws that governed prior to the Clean Air Amend-

ments, a source owner could seek a delay by applying

for a “variance” from the State pollution control agency.

If (usually after a public heading) the State agency

determined that the polluter had met vaguely specified

standards of hardship.** it could grant a variance pre-

2° The Georgia statute that was the object of the court’s decision

below, GA. CODE ANN. § 88-912, is a catalogue of the kinds of hard-

ship co siderations in most State statutes. It is reprinted at the end

on this brief, infra at 51.

venting the State ‘or any other party) from suing for

enforcement of the original timetable.

At issue in this case is one of the key provisions of the

Act. which embodies Congress’ decision to limit the dis-

cretion of federal and State administrators to grant such

sources additional time for compliarce. $110(f', 42

U.S.C. $ 1857e-5'(f!. As noted previously one of the

major weaknesses in the State air pollution control pro-

grams that had grown up under the earlier clean air

statutes was the broad discretion given State «dminis-

trators to: grant variances to escape clean-up deadlines.

The Georgia vairance statute, with its broad and vague

standards, poorly articulated procedures, and low visi-

bility administrative discretion, is an archetype of these

laws. It was obvious that the deadlines and other care-

fully drawn requirements of the 1970 Amendments would

be threatened if administrators were allowed to continue

exercising this vast discretion. Congress thus explicitly

pre-empted such State variance laws with the federal

postponement procedure of S$ 110(f). which sets up a

highly visible procedure for reaching a decision and

specifies clear standards fer deciding whether more time

is warranted. This procedure i> the linch-pin of the en-

tire federal scheme. For the protection of public health

and welfare, and the vindication of Congressional intent,

it must be upheld as written

Under $ 110¢f), an individual polluter must demon-

strate. in a federal administrative adjudicatory proceed-

ing, that he meets four specific requirements in order to

obtain a one vear ‘“‘postponement” of his timetable for

compliance:

(A) that he has made good faith efforts to comply

with the Plan’s requirement:

(B) that the necessary technology or other methods

of contro! are not available or have not heen

. 15

available for a suMficicnt period of time to en-

able compliance;

native operating procedures or other interim

contro] measures to minimize the impact of

continued noncomplianee on publie health:

(D) that continued operation of the sources is es-

sential to national security or public health and

welfare.

S11O(fi(1)(Ai-(Di, 42 U.S.C. § 18576-51111) 1A)-

(D).

Keeping in mind that Congress did not intend ‘to sanc-

tion granting individual poliuters additional compliance

time willy-nilly. the requirements for obtaining a_post-

ponement are neither burdensome nor unreasonable. A

polluter who asks for additional time for compliance is

asking the government to sanction emissions that will

damage the health and welfare of its people—emissions

which he had earlier agreed to abate. In such a situa-

tion, it does not seem unreasonable to require the poiluter

to show that his inability to comply on time is the result

of real impossibility, despite good faith efforts: that he

is applying all the alternative interim measures he can

to reduce the damage to health until he can compiy: and

that the operation of his source of pollution has a social

value that justifies the additional social harm he seeks

to inflict. When one considers the Congressional purpose

in enacting the Clean Air Amendments. it seems hardly

untoward to burden those who would endanger public

health with the duty to justify their request.

All parties before the Court agree that this federal!

procedure pre-empts State variance laws. The disagree-

ment has to do with what circumstances trigger pre-

emption. Respondents, in concert with the court below

and three of the other four Courts of Appeal that have

considered the issue, maintain that pre-emption is trig-

gered as of a date certain. The Fifth Circuit, tracking

the clear ard unequivocal language of the statute, held

that once the EPA Administrator approved a State's

Implementation Plan, the State's variance law was pre-

empted. Natural Resources Defense Council, et al., Vv.

Environmestal Protection Ayeney, 489 F.2d 390, 398-403

(Sth Cir. 1974). The First Circuit agreed, but, seeking

to allow. EvA and the States somewhat. more flexibility,

stretched the statute’s language to hold that pre-emption

occurred only as of the date chosen by the State for

attainment of the National Primary Ambient Air Quality

Standards. Natural Resources Defense Council, et al., V.

Environmental Protection Agency, 478 F.2d 875, 884-

S88 ‘1st Cir. 1973). Two other Courts of Appeals, those

for the Eighth and Second Circuits, followed the First

Cireuit. Natural Resources Defense Council, et al., Vv.

Environmental Protection Agency, 483 F.2d 690, 693-

694 ‘Sth Cir. 1973), and Natural Resources Defense

Covneil, et al., Vv. Environmental Protection Agency, 494

F.2d 519, 523 (2d Cir. 1974). The practical effect of

these four decisions becomes increasingly similar as the

States’ attainment dates approach.”

EPA acceded to this interpretation in regulations pub-

lished September 26, 1974 ‘after the filing of its pe-

tition for certiorari with this Court), which disapproved

the variance statutes of all the States. 39 Fed. Reg.

34533-37, 34572-74 (Sépt. 26, 1974), App. 11-27. In its

brief here, however, the Agency has taken a radically

different position, claiming that pre-emption is triggered

only upon its own finding that a State variance will

result in air quality worse than a National Air Quality

* Thirty-two of the States chose July, 1975. or earlier, as the

date for attaining the National Standards for the pollutants most

associited with the stationary sources that could be expected to

request variances or postponements. The remaining 18 received

extensions of the attainment date under §110(e), 42 U.S.C. § 1857c-

5fe), up to two vears.

Standard. This represents a return to its earlier posi-

tion, which was rejected explicitly by four of the five

Courts of Appeai.

This approach was also considered, and rejected, by

Congress, when it wrote the Clean Air Amendments. as

part of the generai Congressional decision to avoid the

use of ambient air quality standards: to reguiate in-

dividual pollution sources which has been discussed pre-

viously. It woud have the effect of undermining the

uniform national regulatory system that Congress sought

in passing the Amendments, thus setting back seriously

the nation’s effort to restore the air to breathable quality.

And it is flatly inconsistent with the plain words of the

statute itself. For these reasons, this Court should re-

ject EPA’s newest attempt to return to its discredited

earlier interpretation, and order the Agency to adhere

to the scheme adopted by Congress. is

SUMMARY OF ARGUMENT

The question in this case is the proper interpretation

of £110(f), the federal postponement procedure of the

Clean Air Amendments of 1970. Sectien 110‘ f1 provides

a federal procedure for determining whether an indi-

vidual source of pollution may be granted additional time

to meet previously agreed-upon compliaiice schedules for

curtailing its emissions into the air. Respondents, in

concert with the court below. take the position that once

the initial regulatory actions were taken under the

Amendments, the federal procedure pre-empted lax State

variance laws. EPA, on the other hand, urges that the

federal procedure pre-empts only after its own decision

that the requested variance would prevent the attain-

ment or maintenance of a National Ambiant Air Quality

Standard—a decision which it has admitted. in other

contexts, is subject to as much as 100 per cent error.

Section 110(f! is not ‘ambiguous, and it provides no

room for the interpretation EPA is attempting to give

it. The section provides that a federal proceeding before

EPA shall be convened whenever “any stationary scurce’” .

seeks additional time “to comply with any requirement

of an applicable implementation plan” [emphasis sup-

plied]. Congress chose this language from among several

alternatives that would have aliowed the States to con-

tinue granting variances. The legislature chose to adopt

a uniform federal system, with clear procedures and

standards for decision, in order to prevent ‘the adminis-

trative backslidir.g and playing off of one State against

another that had hobbled earlier clean air legislation.

The statute provides that an approved Implementation

Plan may be altered through a “revision,” § 11@(a! (2)

(H), (a'(3), 42 U.S.C. $ 1857c-5(a'(2)(H), (a) (3),

and EPA has sought to justify its approval of State

variance laws under its revision authority. This simply

cannot be squared with the statute. A revision (the word

is used six times consistently in £110) is a devicé ini-

tiated by EPA for making general changes in an entire

implementation Plan if, for example, EPA promulgates .

a new National Ambient Air Quality Standard. A post-

ponement, on the other hand, is a procedure invoked by

the source-owner (‘through his Governor) to alter a spe-

cific portion of a State Plan as it applies to that source. -

Five Courts of Appeal have reviewed the question

presented here. All five held that EPA may not claim

power from the revision authority of the statute to allow

States to grant variances. Four, including the Court

below, agreed with respondents that the federal post-

ponement provision pre-empts State variance laws as of

a time certain. rejecting EPA’s argument that pre-

emption is triggered by a judgment about air quality.

The court below held that pre-emption occurred when

State Plans were approved. while the First Circuit. fol-

lowed by the Second and Eighth, held thai pre-emption

occurred only in the “post-attainment™ period—the period

after the date chosen by the State for attainment of the

National Primary Standards. For practical purposes.

these four decisions are becoming increasingly igdistin-

guishable, since in most States the attainnent dete, at

least for Primary Standards. is mid-1975

EPA’s own regulations even belie its present position.

EPA has repeatedly stated that it loes not believe am-

bient air quality measurements or estimates are appro-

priate to make regulatory. decisions for individual

sources. Recéntly, the Agency applied this to variances,

promulgating regulations that explicitly pre-empt all

state variance statutes in the post-attainment period.

These regulations abandon any attempt to use air quality

to determine when State variance laws are pre-empted,

or to claim authority for this attempt from the revision

authority of the Act.

These regulations purport to adopt the Firsi Circuit's

holding. Much as they undermine EPA's position, they

do not meet the requirements of the Act. The jezislative

history of the Act shows that €ongress considered pre-

empting State variance laws only in the “post-attainment”

period, but decided, as part of a general tightening of

key parts of the bill, that the postponement provision

should apply whenever ‘“‘any source’ seeks more time to

comply with “any requirement” of a State Plan.

Interpreting the postponement provision as it is written

is crucial to the attainment of the Congressional purpose.

If EPA may determine when $ 110/f) applies by ad-hoc

air quality judgments ‘which it admits may be quite in-

‘ accurate). then the whole structure of the Act collapses.

Unable to determine with precision when a source is

violating air quality standards, the States and EPA will

be easy prey to political pressure and hardship argu-

ments on a case-by-case basis. In the end, emissions will

20 .

continue to rise, thé National Standards will not be at-

tained, and we cafi expect the serious health consequence:

outlined previously, supra 2-5.

The posiponement provision will net be more burden-

sume to administer than EPA’s proposal. Far from

simplifying matters, EPA’s variance revision scheme

would involve twe agencies rather than one and inject

several new issues into the decision whether to grant

more time—some such as air quality, extremely difficult

and costly to determine. The revision process is any-

thing but expeditious. In the past, EPA has often taken

a year or more to approve a revision. On’ the other hand,

if the postponement. provision operates as Congress ex-

pected, it wid deter some sources from seeking additional

time, reducing the Agency’s burden while encouraging

compliance. .

Nor is it necessary to sanction EPA’s misreading of

he statute because of State reliance on EPA’s interpre-

tation. EPA has suggested that it allowed variances to

entice the States into choosing early dates for the ex-

piration of compilance schedules and attainment of

Standards. If this is true, there was no need for it. The

States were required to choose the earliest date practi-

eable for attaining the Standards, and EPA had a duty

to disapprove any Plans that did not. As a matter of

fact. early dates were not chosen. Only three of the

States where the Primary Standards were violated chose

attainment dates earlier than ihe statutory maximum

time period. And many individual compliance schedules

are still being negotiated, nearly three years after they

were ‘o have been submitted under the statute. Thus

reliance, though a theoretical possibility. has not in fact

occurred. .

The supposed reliance problem EPA cites, arises from

the fact that EPA did not correct thegfailure in some

State Jaws to distinguish between nee schedules,

negotiated when the Plan was being adopted, and later

“Tr 21

requggts for additional time. This could have been dune

at the time the State Plans were submitted, and under

EPA’s own regulations, should have been. Instead, the

Agency chose to ignore its own clarifying regu'ation in

the hope that it could use the ensuing contusion as a

lever to coerce the courts*into its view of the postpone-

ment procedure. This attempt should be rejected. and

appropriate action ordered.

ARGUMENT

I. THE CLEAN AIR AMENDMENTS PRE-EMPT THE

STATES FROM ISSUING VARIANCES TO THE

TIMETABLES OF COMPLIANCE, EMISSION LIMI-

TATIONS. AND OTHER REQUIREMENTS OF

STATE IMPLEMENTATION PLANS.

A. This Conclusion is Compelled By The Language

And Structure Of The Act, And Its Legislative

History.

This case presents a straight-forward question of statu-

tory interpretation: whether $110(f) of the Clean Air

Amendments is the exclusive mechanism for a polluting

source ta request more time to comply with the time-

tables of compliance for meeting the emission limitations

and other requirements of its State Implementation Plan.

As always, the words of the statute itself provide the

first and authoritative indication of the intent of the

legislature. In this case, these words are surpassingly

clear:

Prior to the date on which any stationayu source

(or class of moving sourecs) is required fo comply

with any requirement of an applicable Tmplementa-

tion plan the Governor of ‘the State to which the

plan applies may apply to the Administrator to post-

pone the applicabilitv of such requirement to such

souree ‘or class! for not more than one year.

[emphasis supplied |

42 U.S.C. §$ 1857¢e-51f) (1).

These words are stark and unequivocal—a request for

additional time from ony individual pollution source to

comply with any requirement must be made through the

postponement procedure. There is not the slightest sug-

gestion in these words that the application of this pro-

cedure is limited either in time or circumstance. Once a

State Pian becomes ‘‘applicable’—that is, once it has

been approved by thegAdministrator -—an_ individual

pollution. source may not*dbtain an alteration in its time-

table for compliance save through a postponement pro-

ceeding.*

ongress chose this language from among several al-

ternatives. The Administration favored continued State

control over deadlines,-’ which would have perpetuated

the lax State variance statutes. So did the original House

hil. But Congress rejected these proposals resound-

- See $110¢a) and ce), 42 U.S.C... 5 1857¢e-5(a) and (ce).

- Of course, the source may actually take more time to comply,

even if it does not seek or fails to obtain a postponement, but only

at the msk of enforeement action. As a practical matter, sources

that are exerting good faith efforts may have little to fear from

enforcement actions, even if they do not qualify for a postponement,

since the federal and State agericies may have far fewer resources

than they need to enforce fully the Act’s requirements, and there-

fore may choose to act against willful violations: first.

But the possibility that enforcement action could be taken will

tend to encourage source-owners to achieve compliance as rapidly as

possible.

Seo Sen. Clean Air Amendments Hearings, supra at 1501-02,

and note 19, spre,

' See note 19, supra.

ingly,’ opting instead for a bill that required any re-

quest from a speci ic source to defer the requirements

of an Implementucion Plan applicable to it to go through

the federal postponement procedure. Senator Eagleton, a

prominent draftsman of the 1970 Act, explained why:

I don't want {the public| to think we passed a

clean air act that has variances depending upon the

reasonable rate of implementation which goes on

endlessiy. ©

A strict construction of the Act’s language is also the

only interpretation consistent with its structure and

purposes us a whole, as the court below correctly noted:

In a statute that constituted a “challenge to do

what seem|ed| impossible,” seeking to ‘‘fore{e] tech-

nology to catch up with the newly promulgated

standards,” it was essential to include a device to

ensure that ambitious commitments made at the

planning siage could not readily be abandoned when

the time came to meet those commitments, and to

assume the costs and burdens they entailed.

Section 1857e-5:'f) is the device Congress chose to

assure_this. Congress aimed to make “variances.”

“posfponements,” or whatever departures from ear-

lier commitments might be called unusual and diffi-

cult to obtain.

Natural Resources Defense Council, et al. Vv. Environ-

mental Protection A*.ney, 389 F.2d 390. 401-402 (5th

Cir. 1974). If variances were easy to obtain, the dead-

lines for attaining healthful air quality, which were

perhaps the most innovative aspect of the 1970 Act,

‘For example. the Senate bill, whith largely became the Act,

passed by a margin of 73-0. 116 Cong. Rec. S83120 (daily ed..

Sept. 22. 1970).

*? Sen. Clean Air Amendments Hearings, supra, at 1502.

would become meaningless. Under the Act, each State

must specify a deadline in its Plan that represents

the most expeditious practicable date for attainment of

the Standards. In order.to reach this goal, the State

relies on each regulated source to meet its timetable for

compliance with the emission limitations. If, because of

lenient State variance laws, the State agencies are forced

to grant sources additional time, the attainment of the

statutory goal will be frustrated.

What is more, the national uniformity in pollution

control laws that Congress sought would be wrecked.

One of the greatest reasons for the failure of the 1967

Air Quality Act to improve the air pollution problem

was that by leaving to the States the setting of stand-

ards. emission limitations, and deadlines, it left them

subject to whipsawing by recalcitrant industries. Pol-

luters could often prevent the adoption of strong State

regulations by threatening to move their facilities to

jurisdictions with more lenient laws. This unhappy

experience comprised part of the Congressional motiva-

tion for requiring uniform Nationai Air Quality Stana-

ards and limiting the maximum time that could be taken

to meet the Standards.** Understanding these facts from

past experience, Congress concluded, after considering

other mechanisms, that it must enact a tougher uniform

federal variance procedure to replace the State laws,

and it did.

EPA suggests, inter alia, that the existence of the ‘‘re-

vision” authority provided by $110(a'(2)(H) and (a)

The political pressure that can be applied to ._prevent any

State from exceeding the minimum federal requirements has been

graphically illustrated once aga: in the States’ choice of their

deadlines for attaining the National Standards. Despite the Act’s

injunction to croose the earliest practicable attainment date, only

three of the States where Primary Standards were violated picked

a date earlier than the statutory maximum of three years from

the date of EPA'’s approval of the Plan. See note 55, infra.

(3) shows Congress did not intend that all changes in

compliance schedules and other individuatiy applicable

requirements be made through the postponement proce-

dure. EPA’s Brief 21. This claim, as the court below

and all of the other Courts of Appeal that have reviewed

the issue have agreed.' reflects a serious confusion of

the carefully distinguished purposes and applicability of

the revision and postponement provisions, the only two

means of changing an Implementation Plan. once ap-

proved, provided by the statute. Both words— ‘post-

ponement” and ‘“‘revision’—are carefully used words

of art. The distinction between them is akin to that

between a generevi revision of a zoning ordinance and a

zoning variance. The revision section requires © State

Implementation Plans to include a procedure for revision

under three circumstances:

‘i! from time to time as may be necessary to take

account of revisions of such national primary or

secondary ambient air quality standard or the avail-

abiliiy of improved or more expeditious methods of

achieving such primary or secondary standard: or

‘tit whenever the Administrator finds on the basis

of information available to him that the plan is

substantially inadequate to achieve the national am-

bient air quality primary or secondary standard

which it implements.

The revision procedure is a device initiated by an EPA

finding or action for making general changes in the en-

‘See infra, at 28-30.

Prior to the Administrator's approval. a State may request an

“extension.” which may extend the maximum time allowable for

the attainment of a National Primary Standard to as much as five

years. § 11000), 42 U.S.C. § 1857¢-51e3. An extension must be re-

qnested by the Governor of the State, and the State must show

that (1) using all available means of controlling pollution, it

will be imposible to meet the Standard: and (2). all reasonably

available means of control will be applied in the interim in order

to minimize the danger to public health. See NRDC, ef al.. v. EPA,

175 F.2d 968 4D.C.Cir. 1973),

tire Plan. Section 110(a)(2)(Hy, 42 U.S.C. $ 1857e-5

(ai(2)(H). The postponement procedure, on the cther

hand, is initiated by an individual sovrce (through his

State Governor) to alter a specific compliance schedule,

emission limitation, or other element of the Plan as it

applies to him. Both apply from the date the State Plan

is approved, but to different situations.

The word “revision” is used consistently some six times

throughout £110 of the Aet to indizate a procedure for

changing large portions of a State Plan upon specified

findings by EPA. The primary indications of Congres-

sional intent are $ 110(a)(2)(H) and (a) (3). 42 U.S.C.

S$ 1857¢e-5(a'(2)(H) and (a)(3). But the word is

also used in four other places in contexts that rein-

force the interpretation given here. $110(a)(1), 42

U.S.C. $ 1857¢e-5(ai (1); $110(a) 2) (A) (i), 42 U.S.C.

S1857e-5tari(2(Artin; $110(er(11(C), 42 USC.

$1857¢e-5(1)(C); and $110(d), 42 U.S.C. $ 1857e-5(d).

Significantly, “revision” does not appear in either the

postponement section or in the section that imposes a

duty on the States to adopt emission limitations and com-

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

(a'(2'(B). Nor is it ever referred to in any way in

connection with these sections.

Unlike the postponement procedure, which is initiated

by the source-owner (through his Gevernor), the revision

procedure is initiated by an action of EPA. § 110(a)

(2)(H1, 42 U.S.C. $ 1857¢e-5(a1(2)(H). And unlike

the postponements, whose purpose is to delay abatement,

the purpose of revisions is to restructure State Plans to

accelerate abatement or attain it in greater concert with

other national goals. 7d. The revision section requires

States to provide for revising their Plans in four specified

situations: (1) if the Administrator promulgates new

National Air Quality Standards: (2) if new or more

expeditious methods of controlling pollution become avail-

able, allowing the State to attain the existing National

Standards more quickly; “* (3) if the Administrator finds,

contrary to his earlier judgment in approving -the Plan,

that it is substantially inadequate to achieve the existing

National Standards within the State’s chosen deadlines:

or (4) if the Administrator finds that the State’s gen-

eral emission limitations can be revised to conserve oil

without preventing attainment or maintenance of the

National Standards.”

Each of these eventualities would substantially alter

the underlying basis for the entire State Plan. For

example, if the Administrator were to »romulgate a new

National Primary Standard of 50 micregrams per cubic

meter for sulfur oxides, replacing the present 80 micro-

gram Primary Standard, each State’s entire control strat-

egy for meeting the Primary Sulfur Oxides Standard

would haye to be changed. A State that could meet the 80

microgram Standard by reducing the sulfur oxide emis-

sions by 20 percent might now have to reduce them by

50 percent to meet the new Standard. In effect, such a

change would: require a substantially new Plan, setting

new emission limitations, controlling sourcés which pre®

viously could have been left uncontrolled, and perhaps

“© Though the statute does not state that this judgment shall be

reached by the Administrator, the structure of the Act suggests

that such a finding would probably. be made nationally. See, €.9.,

$$ 111 and 112, 42 U.S.C. $$ 1857¢-S and 1857c-7. EPA’s superior

research and evaluation resources, which far exceed those of any of

the States, also virtually assure that EPA will make such judgments.

*The Energy Supply and Environmental Coordination Act of

1974, Pub. L. No. 93-319, 88 Stat. 256 (1974), added, this section

directing EPA to conduct a study and to notify the State if. it

finds that the Staie’s gencral emission limitations can be revised

to conserve oi] without preventing attainment or maintenance of

the National Standards. §110(a)(3)(B), added by the Energy

Supply and Environmental Coordination Act of 1974. \But. con-

sistent with Congress’ earlier decision, based on its doubts that the

National Ambient Air Quality Standards would fully protect public

health, see note 18 supra, to encourage States to adopt more pro-

tective Plans, did not require the States to revise their Plangs on

the basis of EPA’s notification.

instituting other additional types of controls contemplated

by the Act. See $110'a'(2'(B), 42 U.S.C. $ 1857¢-5

(a) (2)(B). For this reason, the Act provides for

EPA review parallel to that for the original Plan.

$$ 110/a) (3) and 110(¢)(1)(C), respectively; 42 U.S.C.

$$ 1857¢e-51a1(3) and 1857¢e-5(¢)(11(C). As with the

original Plan, the Administrator may approve a Plan

revision only if (1) it has been subjected to public hear-

ing, and (2) it meets the general requirements for an

Implementation Plan set out in “paragraph |110¢a) | (2).”

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

B. EPA’s Proposed Reading Of The Statute Has Been

Rejected By The Courts Of Appeal That Have

Reviewed The Issue.

Five Courts of Appeal have reviewed the issue pre-

sented here. Natural Resources Defejse Council, et al., Vv.

Environmental Protection Agency, #9 F.2d 390 (Sth Cir.

1974) (the court below), Natural Resources Defens.’

Council, et al., V. Environmental Protection Agency, 478

F.2d 875 (1st Cir. 1973). Natural Resources Defense

Council, et al., Vv. Environmeinte! Protection Agency, 494

F.2d 519 (2d Cir. 1974), Natural Resources Defense

Council, et al., Vv. Environmental Protection Agency, 483

F.2d 690 (8th Cir. 1974), and Natural Resources Defense

Council, et al., Vv. Environmental Protection Agency,

No. 72-2145, F.2d —— (9th Cir. Nov. 11, 1974).

All five rejected EPA’s interpretation of the Act’s re-

Vision sections. All but one also rejected EPA’s claim

that pre-emption of State variance laws depended on

EPA’s determination of whether the requested variance

would prevent attainment or maintenance of a National

Ambient Air Quality Standard, holding this legally ir-

relevant to the question of when $ 110'f) pre-empted

State variance laws.

The opinion of the Fifth Circuit. the court below, is the

most consistent and carefully reasoned. Canvassing the

history and- regulatory scheme of the Act, and roije of

the postponement procedure in effectuating the Act’s pur-

poses, Judge Wisdom wrote for a unanimous court that

the federal postponement provision should be strictly

construed:

We cannot accept the Administrator’s reading of

the statute. Nothing in the statute supports the

limitation of section 1857¢-5(f) to situations involv-

ing sources so large that a single variance granted

it threatens the attainment of a national ambient

standard. Section 1857c-5(f! speaks in terms of

“any stationary source,” and the postponement of

“any requirement of an applicable implementation

plan.” This language is not ambigous and lends no

basis for the construction the Administrator puts

on it. |emphasis in the original. |

Natural Resources Defense Council, et al., v. Environ-

mental t rotection Agency, 489 F.2d 390, 401 (Sth Cir.

1974).

The First Circuit, followed by the Eighth and the

Second, also rejected out of hand the position now urged

. by EPA:

Had Congress meant § 1857¢-5(f' to be fol’owed

only if a polluter, besides violating objective State

requirements [i.e., compliance schedules, emission

limitations, and similar regulatory provisions of the

Plan]. was shown to be preventing maintenance of

a national stardard, it would have said so. To allow

a polluter to raise and perhaps litigate that issue

is to invite protracted delay. The factual question

could have endless refinements: is it the individual

variance-seeker or others whose pollution is prevent-

ing maintenance of standards? See, e.g., Getty Oil

Co. v. Ruckelshaus, 342 F.Supp. 1006 (D.Del.

1972), remanded with directions, 467 F.2d 349 (3rd

Cir. 1972), cert. denied 41 U.S.L.W. 3392 (Jan. 15,

1973), where Getty raised this issue in various

forums.

Natural Resources Defense Council, et al., Vv. Environ-

mental Protection Agency, 478 F.2d 875, 886 (1st Cir.

1973).

The two leading courts did not reach precisely the same

result, however, because the First Circuit failed to im-

plement the logic of its reading of the statute. Rather.

stating its concern that the States have “flexibility” in

the period prior to the date they had promised to meet

the National Standards, the court held that the federal

provision pre-empted only in the ‘“‘post-attainment period.”’

478 I".2d 875, 887. As shown below," this position was

considered and rejected by Congress when it passed § 110

(f), and is not in fact necessary to provide the flexibility

the Court sought. With the “attainment date” fast ap-

proaching for most States, however, the practical differ-

ence between this interpretation and that of the Fifth

Circuit is disappearing; and in any case, EPA’s position

can draw no sustenance from either of them.

C. EPA Has Abandoned In Its Own Regulations The

Position It Urges On The Court Here.

EPA has repeatedly promulgated federal regulations

that are premised on the fact that ambient air quality

standards, though essential as the goal for State Im-

plementation Plans and for determining the general State

emission limitations. are not a proper tool for the regula-

tion of specific sources of pollution. Until recently, how-

ever, it retained the regulation that was declared illegal

by the court below. This regulation provided that:

A State’s determination to defer the applicability

of any portion(s: of the control strategy with re-

spect to such [an individual] source(s) will not ne-

cessitate a request for a postponement under this

section unless such deferral will prevent attainment

or maintenance of a national standard within the

“S See 34, infra.

time specified in such |State Implementation] plan:

Provided, however, that any such determination will

be deemed a revision of an applicable plan under

140 C.F.R. $ 51].6.

40 C.F.R. $51.32(f), originally promulgated as 42

C.F.R. § 420.32(f1, 36 Fed. Reg. 15486, 15494 (Aug. 14,

1971). In September, 1974, however, after the filing of

its petition for review in this case. the Agency promul-

gated new regulations that revised this regulation and

abandoned entirely its claims that the applicability of

the federal postponement procedure depends on whether

a source’s request for more time would prevent the at-

tainment or maintenance of a National Standard. These

regulations also ended the Agency's attempt to find sup-

port for this position in the revision sections of the stat-

ute, 39 Fed. Reg. 34538-37, 34535 and 34572-74 (Sept.

26, 1974),

In other contexts, EPA has for some time taken the

position that air quality measurements (or estimates!

are not a proper mechanism for regulating individual

pollution sources. For example, in proposed regulations

to implement this Court’s ruling on significant deteriora-

tion,’” EPA had the following to say about one of the

techniques for relating emissions from individual sources

to ambient air quality:

Current diffusion modelling techniques, when un-

calibrated and used in the absence of baseline air

quality data, can exhibit random errors as high as

t. factor of two [100° | for short term concentra-

tions and a factor of 1.5 [50%] for annual aver-

ages when compared with known concentrations of

: pollutants. It should be noted that in assessing most

average concentrations, particularly those resulting

“Sierra Club yv. Ruckelshaus, 344 F.Supp. 253 (D.D.C. 1972),

aff'd per curiam without opinion by — D.C. Court of Appeals, aff'd

by an equally divided Court, 412 U.S. 541 (1973).

fror: multiple ‘sources, significantly better accuracy

can be obtained. However, this is not the type or

application normaHy—associated with the significant

deterioration concept, which calls for pre-construe-

tion review of individual new sources. {emphasis

supplied |

39 Fed. Reg. 31000, 31003 (Aug. 27, 1974).

The Agency has also rejected the use of so-called “in-

termittent” or “supplementary” controls, an alternative

to emission limitations that depends on ambient air qual-

ity as the trigger for invoking control actions, on the

grounds that with rare exceptions ambient air quality

measurements are not adequate or enforceable with re-

spect to individual sources,*’

These regulations obviously conflict with the position

EPA took in its original regulation concerning State

_variances, quoted above. Until recently, however, EPA

clung to its variance regulation,-even in the face of the

adverse court decisions described in the previous section.

In September, 1974, however, the Agency promulgated

new regulations that revised its variance regulations,

abandoning entirely the position the Agency now urges

before this Court. These regulations revised 40 C.F.R.

$ 51.32(f), to read as follows:

In July, 1972, EPA rejected any use of intermittent controls

because it did not believe that emissions vould be related to ambient

air quality with sufficient certainty to assure enforceability. 37 Fed.

Reg. 15095 (July 27, 1972). In a later proposed rule-making, EPA

proposed to allow the use of intermittent controls only on “isolated

sources,” which would “assume responsibility for all ground-level

concentrations of the pollutant covexed by the supplementary control

system in all areas significantly affected by its emissions.”’ Proposed

Appendix P to 40 C.F.R. Part 51, 38 Fed. Reg. 25697 (Sept. 14,

1973). Perhaps because of EPA’s continuing doubts about whether

intermittent controls can be enforced, the Agency did not promul-

gate these proposed regulations, Recently it disapproved a State

regulation that would have allowed the unrestricted use of inter-

mittent controls. 39 Fed. Reg. 29357 (Aug. 15, 1974).

A State’s decision to defer ‘the date by which «

svurce must achieve compliance with an applicable

plan provision will not necessitate a request for a

postponement under this section [40 C.F.R. £51.32]

if the deferral meets the following requirements:

‘1) Compliance is + ot deferred heyord the appli-

cable attainment date specified in Part 52 of thi.

chapter {the date(s: chosen by the States for at-

tainment*of the National Primary and Secondary

Ambient Air Quality Standards |

39 Fed. Reg. 34533, 34535 (Sept. 26, 1974).

At the same time, the Agere) disapproved all State

Variance statutes, 39 Fed. Reg. 34535-37. promulgating

hew regulations for compliance schedules and proposing

a substitute federal regulation to replace the disapproved

Variance statutes. 39 Fed. Reg. 34572. 34573. In ex-

plaining the reason for this decision. the Ageney cited

the decisions of four Courts of Appeal, and purported

to adopt the interpretation of the statute given by the

First Cirevit Court of Appeals.

Because of the different interpretation of the statute

rendered by the Fifth Cireuit. EPA did not attempt to

make these regulations binding on the States within the

jurisdiction of that court. -39 Fed. tex. 34533. But the

regulations do represent a binding public declaration that

the Agency has now abandoned entirely the claim that

federal pre-emption of State variance laws occurs only

when a proposed variance would prevent the attainment

or. maintenance of a National Standard. and discarded

its attempt to find support for this position in the revi-

sion authority of the Clean Air Amendments. While

these new regulations still do not comport with the

proper interpretation of the statute given by the court

below, they do evidence clearly EPA's agreement that

the position it now urges before this Court cannot be

supported by reference to the Clean Air Amendments.

D. The Legislative History Of The Act Demands That

Postponements Be The Exclusive Means Of Relief.

The foregoing demonstrates that EPA’s interpretation

of the federal postponement provision cannot be squared

with the language or structure of the Clean Air Amend-

ments, with the relevant court interpretations or even

with EPA’s own administrative interpretation of the

Clean Air Amendments. The remaining legal question

is whether the Fifth Circuit, or the First, Eighth and

Second, correctly interpreted the law. The Fifth Circuit’s

opinion, in addition to its greater faithfulness to the

plain language of the statute, is also the only one con-

sistent with the legislative history of the Act.

The legislative history of the Ciean Air ,.Amendments

shows that Congress considered other schemes for deal-

ing with variances, among them the one urged by the

First Circuit, but rejected them in favor of pre-empting.

State variance procedures entirely. This choice was a

necessary concomitant of the Congress’ decision, consist-

ent with its often-stated desire to return the air to health-

ful quality as quickly as possible, to require the States

to meet the National Air Quality Standards “as expedi-

tiously as practicable.” Section 110(a) (2) (A), 42 U.S.C.

S$ 1857¢e-5(a)(2)(A). See note 19, supra.

The ancestors of the provision at issue in this case

were drawn on the assumption that the statutory dead-

line for attaining the National Standards was a flat

three vears. The Senate-passed bill contained two pro-

visions for altering a State Plan. S. 4358, Sections 111

fe) and (f)}, S. Rep. No. 91-1196, 91st Cong., 2d. Sess.

(1970) at 89. Section 111 (e) of the bill was plainly the

forerunner of the “revision” sections (Section 110(a)

(2)(H) and (a) (3) of the Act). It would have pro-

8 111l¢e) of the bill is printed at App. 34.

vided that if the Secretary * determined, on the besis of

new studies or other information, that a State Plan was

inadequate to attain the National Standards, he must

give the State a chance to revise its plan; in the event

that it did not, he must promulgate a revised Plan ade-

quate to meet the Standards.

The bill would have limited revisions even more closely

than the Act -does; a Plan could have been revised only

when the Secretary had determined it was inadequate to

reach the Standards. In the Act, the revision procedure

was given a slightly wider, though still circumscribed,

scope, and a provision that would have allowed the Sec-

retary to extend the State’s deadline for meeting Na-

tional Standards through a revision was placed in a

separate section ($ 110‘e), 42 U.S.C. $ 1857¢-5/e)) from

the revision authority in order to reinforce the distine-

tion between changes that hastened or assured attain-

ment of healthful air quality, and those that slowed it.

See 24-28 supra.

Section 111(f) of the bill was the ancestor of the

present ‘“‘postponement” provision, now contained in Sec-

tion 110(f).° It would have allowed a three judge fed-

eral court, at the request of the source (conveyed through

the State Governor), to grant “relief from the effect of

such expiration [of the deadline for meeting National

Standards]” to an ingividual source. That is, the court

could have allowed delay in meeting the requirements

of an approved Plan applicable to the source, such as

** At the time the Senate wrote the bill, it would have been ad-

ministered by the National Air Pollution Control Administration of

the Department of Health, Education. and Welfare. Before final

passage of the Act, EPA was created. Thus the bill refers to the

“Secretary” where the Act uses “Administrator.”

'S$111(f) was the precursor of both the. postponement and

extension provisions of the Act. The extension provision is not

at issue in this case. See note 35, supra. The text of proposed

$111(f) is reprinted at App. 34-36.

a compliance schedule or emission limitation. In other

words, under the bill what is now the “postponement”

procedure would have been confined exciusively to situ-

ations where a polluter sought to continue violating the

State emission limitations beyond the bill’s three year

deadline meeting for the National Air Quality Stand-

ards. In short, the Senate bill, consistent with its three-

year deadline for attaining the National Standards.

would have pre-empted State variance laws only in the

post-attainment—as it was then written, post-three year

—period."

The Senate bill was altered in the Conference Com-

mittee to provide that a source’s attempt to delay com-

plianece with “any requirement” of a State Pian would

be considered a “postponement,” while an enlargement

of the three-year maximum time period for meeting the

National Standards in an Air Quality Control Region

or State as a whole would be considered an “extension.” '

This change was necessary to conform this provision

with the change in the deadline for attaining the Na-

tional Primary Standards made by the Conference Com-

mittee. The Senate-passed bill would h-ve required only

that the States meet the National Standards “within

three years from the date of [the Plan’s| approval.” S.

4358, $ lll(a)(2)'1A), S. Rep. No. 91-1196, 91st Cong.

2d Sess. 87 (1970).

** But even the Senate bill would not have sanctioned allowing

the States to control the triggering of the postponement procedure

by deciding whether a polluter was causing a violation of National

Standards. Under the bill, triggering would have been automatic:

prror to the statutory deadlines, the postponement procedure would

not have applied: after the deadline, it would have. The bill,

in other words, would have adopted the First Cireuit position, see

30, supra.

" See n. 35 supra. This change was considered important enough

for comment in even the cursory discussion in the Conference Com-

mittee’s Report, H. Rep. No. 91-1783, 91st Cong., 2d Sess. 45 (1970).

37 . & |

This language was strengthened by the Conference

Committee. Seeking to assure healthful air quality as

soon as possible, €he Committee replaced the Senate's

three-year deadline with language that required the State

Plans to

Provide for the attainment of such primary |Na-

tional Air Quality] standard, as expeditiously as

practicable but in no case later than three years

from the date of [the Plan's] approval {emphasis

supplied. |

$110(ai (211A), 42 US.C. § 1857¢e-51a1 12) (A).

Thus, the law does not leave the State free to take

three years to-attain the National Standards, as EPA’s

Brief assumes," if they can accomplish it sooner. A

‘State must provide for meeting the National Standards

as soon as possible, using all’ the means “practicable”

to accomplish this task. The earliest date “pyacticable”

is the date the State must choose."

Under the language of the Senate bill, it would have

been possible for a State to grant a variance without

preventing it from attaining the National Standards

within the mandated deadline, since this would have been

a flat three years. But under the Act this is impossible,

since the States must choose to meet the Standards at

the earliest “practicable” date. To attain the National

Standards ‘as expeditiously as practicable’ can have

only one meaning: that the State has required the maxi-

‘EPA's Brief 10-12, 28.

* Curiously, EPA’s original regulation on varianees, 40 CFR

$51.52, since abandoned by the Agency (see 30, supra) also

adopted Petitioners’ reading of “as expeditiously as practicable.”

It provided that States should determine whether a proposed vari-

ance would prevent attainment of the Standards “within the time

specified in such a plan,” 40 CFR §51.32(f), not “by the end of a

three-year period,” as would be consistent with the present inter-

pretation adopted in EPA’s Brief.

mum available controls on all sources at the earliest

possible date. Thus any variance would, « fortiort, delay

the attainment of the National Standards beyond the

date previousiy considered the earliest one practicable.’

In short, the logic of the Act dictates that there simply

are no cases where States can grant Variances that will

not affect their ability to meet the National Standards

Within the statutory deadline. EPA’s claim that there

are such situations amount to either (1) ignoring the

fact that Congress materialiv altered the Senate bill in.

Conference, or (2) an admisvion that the Agency failed

to meet its statutory obligation to assure that the States

chose to attain the Standards at the earliest practicable

date.

Against this solid evidence of Congressional intent,

EPA is able to muster only. an equivocal quotation from

Senator Muskie in his introduction of the conference bill

in the Senate. EPA’s Brief 26. Discussing the federal

postponement provision, he said that it would allow “A

Governor [to] apply for a postponement of the deadline,

if, when the deadline approaches, it is impossible for

a source to meet a requirement under an implementa-

Dec. 18, 1970). Whether the Senator correctly referred

to the ‘deadline’ embodied in a State compliance sched-

ule, or was merely thinking of the rejected language

that had previousiv been included in the bill reported

from his Senate Subcommittee is unclear. In any case,

it is pale authority with which to refute the actual

‘For example. a State may have provided, in its Plan, that it

would meet the National Standard for sulfur oxides by the end of

1974, by requiring, among other things, large fossil-fueled power

plants to install equipment to remove sulfur from their exhaust gas

streams by that time. If such sources were then granted variances,

perhaps because their suppliers were unable to provide the neces-

sary equipment until six months later, the State would be forced

to meet the National Standards that much later.

changes in the language of the bill made by the ful!

Conference Committee.

Il. INTERPRETING THE POSTPONEMENT PROVI-

SION AS WRITTEN IS CRUCIAL TO THE ATTAIN-

MENT OF THE CONGRESSIONAL PURPOSE.

In examining the policy issue presented in this case, it

is important to keep in mind the purpose of the Clean

Air Amendments. This law was passed because of the

acknowledged hazards to human health and welfare posed

by air pollution—hazards, which as anyone who walks

the streets of any major American city knows, have

gotten worse at a rapidly accelerating rate in the last

two or three decades.

The Act was intended to reverse this trend, drastically

reducing the usually unnecessary and often wasteful

emissions of pollutants that produce this public health

menace.

The regulatory system designed to achieve this objec-

tive is a complex one, but it is all built on a very sage

judgment about human nature: people are far more like-

ly to take a task seriously if they are given a deadline

for completing it, and told that the deadline will be diffi-

cult to escape. If this Court should reach for an inter-

pretation outside the language of the statute, as EPA

urges it to, this objective will be thwarted. The force

of the deadlines for attaining healthful air quality will

be largely broken, and the Congressional purpose there-

fore subverted.

Under the postponemert procedure, Congress made the

granting of additionai compliance time dependent on

three basic factors: a history of good faith effort by the

source to abate emissions, a judgment that technology to

do better is not yet available, and a conclusion that the

benefits of continued operation outweigh the dangers it

poses to the health and welfare of people. To ensure that

these factors were judged by uniform standares, it placed

the decision in EPA, rather than the 50 different State

governments. It avoided having EPA make judgments

about the effect of the source of ambient air quality, be-

cause, as we have seen, such a judgment cannot be mace

accurately, and because it knew from past experience

that depending on such. an uncertain standard provided

recalcitrant polluters with the room for debate that

would maximize pressure for concessions by reguiatory

agencies and for challenge in the courts, rather than the

‘ incentive to act expeditiously to control emissions.

Both the Fifth and the First Circuits understood and

endorsed these sound considerations. of public policy.

Quoting Senator Muskie, thé Fifth Circuit noted the im-

portance of applying the postponement provision to all

attempts to extend compliance schedules:

“The first responsibility of Congress is not the mak-

ing of technological or economic judgments—or even

to be limited by what is or appears to be techno-

logically or economically feasible. Our responsibil-

ity is to establish what the public interest requires

to protect the health of persons. This may mean

that people and industries will be asked to do what

seems to be impossible at the present time. But if

health is to be protected, these challenges mv :t be

met.”

116 Cong. Ree. S16091 (daily ed. Sept. 21, 1970),

quoted at Note supra, at 581. In a statute that

constituted a “challenge to do what seem|ed] im-

possible,” seeking to “‘forc|e] technology to catch

up with the newly promulgated standards,” it was

essential to include a device to ensure that ambi-

tious commitments made at the planning stage could

not readily be abandoned when the time came to

meet those commitments, and to assume the costs

and burdens they entailed.

489 F.2d 390,806- #C/

The First Circuit put it more succinetly:

To allow a polluter to raise and perhaps litigate

that issue |the effect of a variance on alr quality |

is to invite protracted delay. The factual question

could have endless refinements: is it the individual

variance-seeker or others whose pollution is prevent-

ing maintenance of standards? Sce e.g., Getty Oil

V. Ruckelshaus, 342 F.Supp. 1006 «D. Del. 1972).

remanded with directions, 467 F.2d 349 (3rd Cir.

1972), cert. denied, 41 U.S.L.W. 3392 (Jan. 15,

1973), where Getty raised this issue in various

forums.

478 F.2d 875, 886.

Throughout the other briefs before the Court, these

sound considerations of public policy are hardly men-

tioned. Instead. both the government and the amici curiae

intently assert, without evidence, reasons why they claim

the postponement procedure will not work,’ or will not

accomplish the purpose Congress intended.”

The short answer to these claims, of course, is that they

are irrelevant to the case before this Court. The question

here is what Congress said and intended, not whether

the mechanism chosen was the best one possible. See 21-

28, supra. As we have shown previously, Congress con-

sidered a number of possible alternative systems for

handling the problem of sources that could not, or did

net want to, comply with the requirements of State Im-

plementation plans. The one urged by the First Circuit

(and EPA in its September 26, 1974, regulations) was

embodied in the Senate hill, ard the one supported by

EPA here was contained in the House and Administra-

“EPA’s Brief 28-30; Brief of amicus curiae Edison Electric

Institute 21-26.

“°EPA’s Brief 41-46: Brief of amicus curiae Edison Electric

Institute 21-26.

tion bills. Congress heard tne arguments for these alter-

natives, and decided to reject them. If EPA and the

regulated industries disagree with that judgment. they

may urge them once again on the legislature. Since these

objections have been raised here, however, respondents

believe the Court should be aware of their deficiencies.

A. Pre-emption Of State Variance Laws By The Fed-

eral Postponement Procedure Would Not Increase

The Burden Of Administering The Clean Air Act.

Under the system urged by EPA, a request by a

source for deferral of compliance beyond the end of its

compliance schedule sets in motion a series of adminis-

trative determinations. In the first instance, a State

agency must convene a proceeding to review the request

for a variance under State 'aw. Under most State vari-

ance laws, the agency must consider the same questions

that must be considered under the federal postponement

provision, as well as others. Most State laws allow the

source to raise the issue of cost, a complex issue which

may not be raised in a postponement preceeding.’ In

order to comply with EPA’s interpretation the State

“must also take evidence on whether the requested vari-

ance will result in pollution exceeding the National Air

Quality Standards, a question which also is not germane

in a postponement proceeding.

If the State decides that a postponement proceeding

is not ealled for, its proposed variance will undergo the

“revision” procedure provided in EPA’s regulations. 40

C.F.R. $51.6. The revision process can, and frequently

Congress reached its own policy decision on how to strike the

balance between protection of the public and economic costs, and

consistently avoided allowing the cost issue to be injected into pro-

ceedings with respect to individual sources. See, e.g., S. Rep. No.

91-1196 2 (1970), and Natural Resources Defense Council, et al.,

v. Environmental Protection Ageney, 478 F.2d 875, 888-889 (Ist

Cir. 1973), Natural Resources Defense Council, et al., v. Environ-

mental Protection Agency, 489 F.2d 390, 411-413 (5th Cir. 1974).

does, take months to complete; and delays of over a

year in revision approval by EPA are not uncommon.

The steps in the revision process are numerous: the

State must first publish notice of the proposed revision,

make available the proposal, and hold a public hearing

normally no sooner than 30 days after the proposal is

available. 40 C.F.R. $$ 51.4, 51.6(f). The State must

then consider the hearing record, formally adopt the re-

vision, and submit it to EPA for review. 40 C.F.R.

§ 51.6(d). EPA then begins review and, if it determines

the revision may be approvable, publishes a notice of

receipt of the revision in the Federal Register, giving a

minimum of 30 days for public comment. EPA appar-

ently takes the position that it is not required to approve

or disapprove such revisions within a specific period of

time, for the Agency has on a number of occasions al-

lowed more than a year to pass between the submission of

a revision and EPA approval or disapproval action.”

Thus, the revision process is a long one and no require-

ments for expeditious handling are recognized by any of

the participants. And, if, after analyzing a proposed State

variance, EPA concludes that the variance would jeopar-

dize a National Standard, EPA must then undertake a

postponement proceeding anyway.

In short, the procedure urged by EPA is one that re-

quires administrative duplication and examination of sev-

* For example, on September 10, 1973, the State of Washington

submitted a proposed Pian revision to EPA. EPA published notice

of receipt of this revision on November 15, 1973. 38 Fed. Reg.

31513. On September 20, 1974, a year after the revision was sub-

mitted to the Agency, EPA asked Washington State to provide

additional supportive information. To date, the revision has still

not been approved. See also, Tennessee Revision: submitted to EPA

on June 27, 1973; Federal Register notice published December a4.

1973, 38 Fed. Reg. 34477; EPA approval of the revision on August

8, 1974, 39 Fed. Reg. 28528. See also, Connecticut Revision: State

hearings held, August 9-15, 1973: submitted to EPA, January

9, 1974; EPA notice in the Federal Register, April 26, 1974, 39

Fed. Reg. 14728; EPA has still not approved it.

eral additional issues of fact. Even if the State and EPA

ultimately agree that a postponement proceeding is not

called for, this multi-stage process is hardly a model of

dispatch. The simple fact, ignored in EPA’s brief, is that

any request for additional time for compliance, no mat-

ter how the agencies deal with it, will consume consider-

able administrative resources and time.

It would thus appear that EPA’s real concern is not

the total administrative costs or burden of the two alter-

natives, but rather the distribution of the burden. Under

EPA’s proposed scheme, the State agencies, which are

largely underfunded and undermanned,” would be forced

to share the costs of considering requests for additional

time. The statutory scheme would relieve the States of

these costs by placing them on EPA. While the phenome-

non of bureaucratic self-protection is a well-known one,

it is hardly an excuse for bending the Congressional

mandate.

EPA also seems to assume that the number of requests

for additional time will be the same under either its pro-

posal or the statutory postponement system. This sugges-

*s According to EPA’s State Air Pollution Implementation Plan _

Progress Report, January 1 to June 30, 1974:

Control agency resources are being strained by the increased

program demands being placed upon them... At present the

control agencies are approximately 3000 man-years below the

estimate of needed resources. [p. 2].

The anticipated 1975 and 1977 expenditures for accomplishment

of the basic SIP and anticipated revisions are approximately

$188 million and $216 million, respectively. In 1974, the

agencies had available approximately 69 percent of the funds

stated as needed by 1975. Approximately one-third of the

States spent less than 60 percent of their stated revised 1975

needs. [p. 108}.

U.S. Environmental Protection Agency, Office of Air and Waste

Management, Office of Air Quality Planning and Standards, Re-

search Triangle Park, N.C., State Air Pollution Implementation

Plan Progress Report, January 1 to June 30, 1974 (1974).

tion indicates just how much the Agency has lost sight of

the animating concepts of the law. For the whole purpose

of enacting the postponement provision, and its certain

effect, was to encourage efforts to comply by discourag-

ing applications for more time from all but those sources

that could clearly establish their inability, despite their

best efforts, to meet their previously negotiated timetables

for compliance. See discussion supra, at 14. If Congress

was right, then the total administrative burden will be

smaller if the law is construed correctly than it will be

under the scheme proposed by EPA, even if each individ-

ual application requires more time for consideration. If

the Congress was wrong, the net result will be to add

nothing to the burden EPA and the States are already

carrying. If Congress is right, the likelihood of curtailing

the death, illness, and discomfort caused by pollution will

be increased. EPA’s proposal, which would prevent even

giving the Congressional scheme a test, would have little

chance of accomplishing this result.

B. The States Did Not Rely On EPA’s Erroneous

Interpretation Of § 110(f).

EPA’s brief also claims that the Admiristrator’s er-

roneous interpretation of $110(f) was justified as a

means te encourage the States to pick early dates for

the expiration of compliance schedules and the attain-

ment of National Air Quality Standards."* Thus the

Agency says it would be unfair to the States that chose

early dates in reliance on this interpretation to change

the rules of the game now. This argument is mere post-

hoe rationalization. EPA had no need to resort to such

tactics, nor did EPA’s interpretation affect the States’

compliance schedules or attainment dates.

"4 EPA’s Brief 29-30, 41.

, 46

1. EPA’s Interpretation Was Not Needed to Induce

the States to Choose the Most Expeditious Prac-

ticable Attainment Dates.

The Administrator is not so impotent under the statute

that he needed to coax the States into commiting them-

selves to meeting the National Standards expeditiously.

As we have noted repeatedly, an acceptable State Plan

must provide for attainment of the National Primary

Standards “as expeditiously as practicable.” § 110(a)

(2)(A), 42 U.S.C. § 1857¢e-5(a) (2) (A). See discussion

supra, note 19. The law also mandates EPA to disap-

prove a Plan that adopts a later attainment date and to

promulgate substitute federal regulations adopting a more

expeditious date. 42 U.S.C. $ 1857¢e-5(¢e). EPA has used

this power liberally. See 37 Fed. Reg. 10842, et seq.,

(May 21, 1972), 40 C.F.R. Part 52. The Agency can

not now claim that its erroneous interpretation of § 110

(f) was necessary to entice the States into complying

with the law.

2. EPA’s Interpretation Had No Effect on the

Attainment Dates and Compliance Schedules

Chosen by the States.

If EPA’s decision to allow variances was designed to

induce early attainment dates and short compliance sched-

ules, it was a total failure. All but three of the States

chose to take at least the three years’ maximum time

allowed in the statute for the attainment of any National

Standard that was, being exceeded in an AQCR.” Eight-

een States actually sought and obtained extensions of

the deadline for meeting the National Primary Standards

to beyond three years, in many cases up to the maximum

five years permitted under the “extension” provision.

“Only the plans for Tagas, Virginia and Washington, among

States where the Primary Standards were violated, provided

for attainment of Standards prior to mid-1975. See 37 Fed. Reg.

10897, 10900, 10901 (May 31, 1972).

§110(e), 42 U.S.C. § 1857¢e-5(e). Thus if the Court re-

quires a return to the proper interpretation of § 110(f),

it will-asork no injustice on the States.

The same can be said for compliance schedules. EP A’s

own regulations and practices with respect to compliance

schedules inadvertantly prevented foreshortened expira-

tion dates by encouraging States to negotiate and submit

compliance schedules long after State Plans were ap-

proved. Though the statute provides that States were to

have submitted their compliance schedules as part of

their Plan (i.e., in January, 1972), $110(a) (1) and (a’

(2) (B), 42 U.S.C. § 1857¢-5(a) (1) and (a) (2)(B), the

Agency unilaterally extended this deadline, by regula-

tion, until February 15, 1973." Actually, few States met

even that extended deadline, and EPA is still promul-

gating its approvals of State compliance schedules.** In

nearly every State, in other words, the negotiation of

compliance schedules occurred after respondents herein

and others had filed suits across the country challenging

EPA’s decision to allow variances, and many, if not most,

negotiations occurred after the First Circuit had declared

5740 C.F.R. §51.15(a) (2) provides

A plan may provide that compliance schedules for individual

sources or categories of sources will be formulated following

submittal of the plan. Such compliance schedules shall be sub-

mitted to the Administrator within 60 days following the date

such schedule is adopted but in no case later than the pre-

scribed date for submittal of the first semiannual report re-

quired by §51.7....

40 C.F.R. § 51.7, referred to in § 51.15, provides that semi-annual

reports shall be submitted to the Administrator within 45 days of

the end of prescribed semi-annual reporting periods. The first |

semi-annual report was not due until 45 days after December 31,

1972, or February 15, 1973. Thus the net effect of the Adminis-

trator’s action was to defer the date for submission of compliance

schedules until February 15, 1973.

** EPA has still not promulgated compliance schedules for a num-

ber of States. Of the’ remainder, many have been promulgated

during 1974. See 40 C.F.R. Part 52.

EPA's interpretation illegal. Natural Resources Defense

Council, et al. v. Environmental Protection Agency, 478

F.2d 875, 888 ‘1st Cir. 1973). Both the States and the

Agency were on notice long ago that variances might

not be available. Their reliance, if any, was plainly

unjustified.

EPA has confused this issue by its failure to require

some States to correct the failure in their State laws to

distinguish between compliance schedules properly agreed-

to when the State Plan was adopted, and later requests

for additional compliance time. Some of the State laws

that were enacted before the passage of the Clean Air

Amendments adopt the fiction that emission limitations

are immediately effective, subject to variances for non-

complying sources. In developing their Implementation

Plans, these States incorporated or adopted such “imme-

diately effective’ emission limitations, and later (pur- ,

suant to EPA’s lenient policy on the submission of com-

pliance scheduleg began to submit State variances to

satisfy the federal requirement for compliance schedules.

Among these “variances” are the several thousand in

the Fifth Circuit that EPA has referred to repeatedly

before this Court.’ Indeed it is fair to say that EPA’s

failure to correct this error in terminology when these

States’ Plans were submitted in 1972 is the reason why

the Agency asked this Court to review the lower court’s

decision.”

EPA actually defined the term ‘compliance schedule”

in 1972 ‘a a way that would, if implemented, have solved

this: problem. In an amendment to its regulations, EPA

defined a compliance schedule as:

The date or dates by which a source is required to

comply with specific emission limitations contained

* Pet. for Certiorari 8; EPA’s Brief 17, 42-43.

"" Pet. for Certiorari, 5-6, 8-9.

in an implementation plan and with any increments

of progress towards such compilance.

37 Fed. Reg. 26311 (Dec. 9, 1972), 40 C.F.R., § 51.1(p).

The accompanying definition of “increments of progress,”

in turn, made clear that the distinction, for purposes of

., federal law, between a compliance schedule and a true

variance is that the former is individually negotiated as

part of the Plan, while the latter is an attempt to extend

a compliance schedule beyond its original expiration date.

40 C.F.R. § 51.1(q).

Thus EPA could have, and under the Act and its own

regulations should have, prevented the present situation

with a stroke of the pen. It still has this power. In-

stead, the Agency has chosen to ignore its own clarifying

regulation, in the hope that it can use the ensuing con-

fusion as a lever to coerce the courts into acceding to

its incorrect interpretation of the postponement provi-

sion. This Court, like four of the five Courts of Appeal

that considered the issue, should resist this attempt.

If EPA must disapprove the confused State schemes

and promulgate federal regulations to take their place,

that is a far better and more lawful result than for this.

Court to distort the plain meaning of the statute. Such

a disapproval would not necessarily result in a signifi-

cant burden on EPA, since it could simply promulgate

a generic regulation converting en mass the variance-

compliance schedules it has already approved into fed-

eral compliance schedules. This Court can make a clear

statement that will prevent such a conversion from. be-

coming a signal for frivolous challenges from the affected

sources.

At the same time, however, EPA should be directed

to clear up the grounds for the confusion which has

brought this case before the Court. EPA should_ be or-

dered to disapprove prospectively all such confusé® State

schemes, and to promulgate clarifying federal regula-

tions, pursuant to its powers under $110(c) of the Act,

42 U.S.C. §$ 1857c-5(¢c), unless the States promptly cor-

rect their deficiencies. If such an order is issued, the

Court will be free to place a proper interpretation on

the statutory postponement and. revision authorities

without concern for its effect on the administration of

the Act. Plainly, EPA should not be akewed to com-

pound its original mishandling of these State laws by

distorting the language and intent of Congress.

CONCLUSION

For the foregoing reasons, the decision of the court

below should be affirmed.

Respectfully submitted,

RICHARD E. AYRES

Attorney for Respondents

December, 1974

Ga. Code Ann. § 88-912 (1971), VARIANCES.

The Department may grant specific or general classes

of variances from the particular requirements of any

rule, regulation or general order to such specific persons

or class of persons or such specific source or general

classes of sources of air contaminants upon such condi-

tions as it may deem necessary to protect the public

health and welfare, if it finds that strict compliance with

such rule, regulation or general order is inappropriate

because of conditions beyond the control of the person

or classes of persons granted such variances, or because

of special circumstances which would render strict com-

pliance unreasonable, unduly burdensome, 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 facility or method

of handling is yet available. Such variances may be lim-

ited in time. In determining whether or not such vari-

ances shall be granted, the Department shall give con-

sideration to the protection of the public health, safety

and general welfare of the public, and weigh the equities

involved and the relative advantages and disadvantages

to the resident and the occupation: or activity affected.

Any person or persons seeking a variance shall do so by

filing a petition therefor with the Director of the Depart-

ment. The Director shall promptly investigate such peti-

tion and make a recommendation as to the disposition

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 recommen-

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

the Department may do so without a hearing; provided,

however, that upon the petition of any person aggrieved

by the granting of a variance, a public hearing shall be

held thereon. A variance granted may be revoked or

modified by the Department after a public hearing which

shall be held after giving at least 15 days prior notice.

Such notice shall be served upon all persons, known to

the Department, who will be subjected to greater re-

strictions if such variance is revoked or modified, or are

likely to be affected or who have filed with the Depart-

ment a written request for such notification.

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.