# Respondents Brief — Train v. Natural Resources Defense Council, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0401%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1975 - **Citation:** 421 U.S. 60 ## 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 © 17 21 21 28 30 34 39 42 II 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 IV 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, iT 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) 15 Vv 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. © 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; (C) that he has implemented the available alter- 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- 16 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. 17 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. 4 18 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- 19 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. 23 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. 24 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. 25 (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), 26 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 27 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. 28 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 29 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. 39 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). 32 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). 33 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. 34 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. 35 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. 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. 38 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- tion plan... ©’ 116 Cong. Ree. S42384-5 ‘daily ed.. 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. > 39 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 40 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/ 41 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. 42 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). en 43 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. 44 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). 45 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). °© 37 Fed. Reg. 10847 et seq. (May 31, 1972). 47 §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. 48 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. 49 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 50 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 X For the foregoing reasons, the decision of the court below should be affirmed. Respectfully submitted, RICHARD E. AYRES Attorney for Respondents December, 1974 ut 51 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 52 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0401%3A10. Public record. Not legal advice.