State of Ala. v. Seeber

• Decision Date: 14 October 1974
• Docket Number: No. 73-2766,73-2766
• Citation: 502 F.2d 1238
• Parties: , 4 Envtl. L. Rep. 20,793 STATE OF ALABAMA and Alabama Air Pollution Control Commission ex rel. William J. Baxley, Attorney General, Plaintiffs-Appellants, v. Lynn SEEBER, General Manager of Tennessee Valley Authority, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1238

502 F.2d 1238

7 ERC 1025, 4 Envtl. L. Rep. 20,793

STATE OF ALABAMA and Alabama Air Pollution Control

Commission ex rel. William J. Baxley, Attorney General, Plaintiffs-Appellants,

v.

Lynn SEEBER, General Manager of Tennessee Valley Authority,

et al., Defendants-Appellees.

No. 73-2766.

United States Court of Appeals, Fifth Circuit.

Oct. 14, 1974.

William J. Baxley, Atty. Gen., Myron H. Thompson, Asst. Atty. Gen., Henry H. Caddell, Asst. Atty., Gen., Chief, Environmental Protection Div., Montgomery, Ala., for plaintiffs-appellants.

Philip K. Maxwell, Asst. Atty. Gen., Austin, Tex., amicus curiae for State of Texas.

David C. short, David D. Beals, Asst. Attys. Gen., Frankfort, Ky., amicus curiae for Com. of Kentucky.

Jan E. Chatten, Deputy Atty. Gen., Los Angeles, Cal., amicus curiae for State of California.

Wyman G. Sherrer, U.S. Atty., Charles Stewart, Wm. D. Mallard, Asst. U.S. Attys., Birmingham, Ala., Kent Frizzell, Asst. Atty. Gen., Martin Green, Chief, Pollution Control Sec., James R. Walpole, Atty., Land and Natural Resources Div., Dept. of Justice, Washington, D.C., Robert H. Marquis, Gen. Counsel Herbert S. Sanger, Jr., Associate Gen. Counsel, Beauchamp E. Brogan, Asst. Gen. Counsel, Justin M. Schwamm, Atty., Tenn. Val. Authority, Knoxville, Tenn., Wallace H. Johnson, Jacques B. Gelin, Larry G. Gutterridge, Attys., Dept. of Justice, Washington, D.C., for defendants-appellees.

Before GODBOLD, SIMPSON and INGRAHAM, Circuit Judges.

GODBOLD, Circuit Judge:

Plaintiffs appeal from a summary judgment denying declaratory and injunctive relief and holding that 42 U.S.C. 1857f, 118 of the Clean Air Act Amendments of 1970 (the Act), does not require defendants to comply with a state requirement, previously approved by the Environmental Protection Agency, that a written permit be obtained for the operation of equipment causing air pollution. Plaintiffs are the State of Alabama and the Alabama Air Pollution Control Commission (the Commission). Defendants are the Tennessee Valley Authority and various TVA officials (hereinafter 'TVA'), and various officers and agencies of the United States Army (hereinafter 'the Army'). ¹

Rule 1.12 of the Commission, provisions of which are set out in the margin, ² requires obtaining from that body a written permit for the operation of any equipment the use of which may cause an increase in air pollution. This rule is a part of the implementation plan for the control of air pollution formulated by Alabama and approved by the Administrator of EPA in accordance with 110 of the Act (42 U.S.C. 1857c-5). See 37 Fed.Reg. 10847-10848 (1972). Defendants have supplied information concerning their emissions of air pollutants to the Commission and have taken steps to abate those emissions, but they refuse to apply for permits in the belief that the Act does not subject them to the Rule 1.12 permit requirement. We must interpret the Act, and particularly 118, in order to determine whether that refusal is justified. ³ We conclude that it is not. In doing so we reach a result contrary to decisions of the Sixth Circuit, Kentucky v. Ruckelshaus, 497 F.2d 1172 (CA6, 1974), and the District Court for the Central District of California, California v. Stastny, 382 F.Supp. 222 (C.D.Cal.1972), appeal docketed, No. 72-2905, CA9, Nov. 6, 1972. The Stastny decision states a conclusion without explication of the supporting analysis. Our reasons for reaching a conclusion different from the Sixth Circuit appear below.

I. Interpretation of 118

Section 118 of the Act (42 U.S.C. 1857f) provides:

Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge of air pollutants, shall comply with Federal, State, interstate, and local requirements respecting control and abatement of air pollution to the same extent that any person is subject to such requirements. The President may exempt any emission source of any department, agency, or instrumentality in the executive branch from compliance with such a requirement if he determines it to be in the paramount interest of the United States to do so, except that no exemption may be granted from section 1857c-- 6 of this title, and an exemption from section 1857c-- 7 of this title may be granted only in accordance with section 1857c-- 7(c) of this title. No such exemption shall be granted due to lack of appropriation unless the President shall have specifically requested such appropriation as a part of the budgetary process and the Congress shall have failed to make available such requested appropriation. Any exemption shall be for a period not in excess of one year, but additional exemptions may be granted for periods of not to exceed one year upon the President's making a new determination. The President shall report each January to the Congress all exemptions from the requirements of this section granted during the preceding calendar year, together with his reason for granting each such exemption.

The phrase 'shall comply with . . . State . . . requirements respecting control and abatement of air pollution to the same extent that any person is subject to such requirements' effectively conveys a Congressional intent that federal facilities are to be treated equally with private facilities in the scheme of control established by the Act. Recognizing that in particular instances such treatment might prove inconsistent with the national interest, the section provides for executive exemption from any requirement.

The scheme of the Act as a whole also supports the conclusion that federal facilities are subject to the Alabama permit requirement. With respect to existing stationary sources of air pollution the Act places the primary responsibility for setting and enforcing emission standards or limitations on the states. EPA, pursuant to 109 of the Act (42 U.S.C. 1857c-4) establishes primary and secondary ambient air quality standards, and the states, pursuant to 110 (42 U.S.C. 1857c-5) establish, subject to approval by EPA, implementation plans geared to meeting the air quality standards. Such implementation plans include, inter alia, 'emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance' of the air quality standards, provisions 'for establishment and operation of appropriate devices, methods, systems, and procedures necessary to (i) monitor, compile, and analyze data on ambient air quality,' and 'necessary assurances that the State will have adequate personnel, funding, and authority to carry out such implementation plan.' 110(a)(2)(B), (C) & (F). The Alabama permit requirement is a part of the Alabama implementation plan previously approved in accordance with the provisions of 110. Indeed, as inspection of the rule itself indicates, it is not only a part of the implementation plan but appears to be the central mechanism by which the Alabama plan provides for the gathering of information and the enforcement of emission limitations necessary to achieve air quality standards.

Sections 111, 112, and 114 (42 U.S.C. 1857c-6, 1857c-7, and 1857c-9) of the Act explicity exempt certain federal facilities from state authority to enforce requirements established by EPA pursuant to those sections. ⁴ Those sections deal with specialized emission standards for new sources and hazardous pollutants and with recordkeeping, inspection and monitoring requirements established directly by EPA. In view of these explicit exemptions for federal facilities, particularly the exemptions in 111 and 112, which like 110 establish control schemes for certain classes of air pollution sources, the absence of any such exemption in 110 suggests that the provisions of implementation plans adopted and approved pursuant to that section, including provisions for state enforcement of emission limitations through permit systems, are applicable to federal facilities.

The general scheme that emerges from the Act as a whole appears to be that responsibility and authority for enforcement with respect to federal facilities are granted to the states for sources with respect to which state implementation plans establish the criteria for enforcement, and is granted to EPA in those instances (i.e., new sources and hazardous pollutants) where EPA establishes the criteria. The scheme is a reasonable one. Because of variations in air quality between states and regions the emissions criteria established under state plans may vary considerably, thus making enforcement by EPA against scattered federal facilities administratively difficult. The new source and hazardous pollutant criteria established by EPA, however, are not tied to air quality standards and may, therefore, vary little or not at all by area, making EPA enforcement against federal facilities more convenient.

The Congressional purpose in enacting 118 supports our reading of the Act. The legislative history indicates that Congressional displeasure with the performance of federal facilities under the then existing provisions of the Air Quality Act of 1967 prompted the enactment of 118. In hearings on the Clean Air Amendments of 1970, the Senate Public Works Committee found 'many incidents of flagrant violation of air and water pollution standards by Federal facilities;' S.Rep.No. 91-1196, 91st Cong., 2d Sess., at 23 (1970). Additionally the Committee noted,

Federal agencies have been notoriously laggard in abating pollution and in requesting appropriations to develop control measures . . ..

Id. at 37. See also, H.Rept. No. 91-1146, 91st Cong., 2d Sess., in 1970 U.S.Code Cong. & Admin.News at 5360. Section 111 of the prior Act relied primarily on voluntary compliance by federal facilities. In strengthening the Act by replacing...