COMMONWEALTH OF KY. EX REL. HANCOCK v. Ruckelshaus

• Decision Date: 13 August 1973
• Docket Number: Civ. A. No. 7480-G.
• Citation: 362 F. Supp. 360
• Parties: COMMONWEALTH OF KENTUCKY ex rel. Ed W. HANCOCK, Attorney General, Plaintiff, v. William D. RUCKELSHAUS, Acting Administrator, Environmental Protection Agency, et al., Defendants.
• Court: U.S. District Court — Western District of Kentucky

362 F. Supp. 360

COMMONWEALTH OF KENTUCKY ex rel. Ed W. HANCOCK, Attorney General, Plaintiff, v. William D. RUCKELSHAUS, Acting Administrator, Environmental Protection Agency, et al., Defendants.

Civ. A. No. 7480-G.

United States District Court, W. D. Kentucky, Louisville Division.

August 13, 1973.

COPYRIGHT MATERIAL OMITTED

Ed W. Hancock, Kenneth A. Howe, Jr., Paul A. Lynch, David C. Short, Frankfort, Ky., for plaintiff.

James A. Glasgow, Dept. of Justice, Washington, D. C., Robert H. Marquis, Herbert S. Sanger, Jr., Beauchamp E. Brogan, Justin M. Schwamm, Tennessee Valley Authority, Knoxville, Tenn., Andrew P. Miller, Atty. Gen., C. Tabor Cronk, Asst. Atty. Gen., Richmond, Va., G. Wilson Horde, Oak Ridge, Tenn., for defendants.

MEMORANDUM AND ORDER

JAMES F. GORDON, Chief Judge.

This suit, brought on behalf of the Commonwealth of Kentucky by State Attorney General Ed W. Hancock, raises an important question concerning the authority of the States to regulate Federal activities and installations¹ under the Clean Air Act of 1970, 42 U.S.C. Section 1857 et seq. In general, the plaintiff asserts that Federal entities operating equipment or installations which emit air contaminants must secure a permit from the Kentucky Pollution Control Commission before operating such equipment. The permit requirement in question appears in Section 5 of the Kentucky Air Pollution Control Commission Regulations AP-1. Section 5, which was part of the air implementation plan which Kentucky submitted to the Federal Government pursuant to Section 110 of the Clean Air Act of 1970, 42 U.S.C. Sec. 1857c — 5, provides in pertinent part as follows:

(1) No person shall construct, modify, use, operate, or maintain an air contaminant source or maintain or allow physical conditions to exist on property owned by or subject to the control of such person, resulting in the presence of air contaminants in the atmosphere, unless a permit therefor has been issued by the Commission and is currently in effect. (Emphasis ours.)

The plaintiff further alleges that "Kentucky's Plan became Federal law pursuant to Sections 110, 113, and 118 of the Clean Air Act of 1970 . . . and Section 118 of the Clean Air Act of 1970 requires that `federal facilities' comply with the approved Kentucky Plan . . . ." Complaint, page 13.

In his prayer for relief, the Attorney General seeks a mandatory injunction requiring the defendants,² except for the Environmental Protection Agency and its defendant-officers, to "apply for and to obtain permits from the Kentucky Air Pollution Control Commission . . . ." (Complaint p. 25). Also, a prohibitory injunction is sought restraining the defendants "from refusing to comply with the provisions of Section 118 of the Clean Air Act of 1970." (Complaint p. 25). With respect to the EPA and its officers, the prayer requests that they be "ordered to commence appropriate action under Section 113 of the Clean Air Act of 1970 to obtain full compliance by the defendants . . . with the Kentucky plan . . . ." A declaratory judgment and relief in the nature of mandamus are also sought.

The TVA defendants moved to dismiss, or, in the alternative, for summary judgment. A motion to dismiss was filed by the non-TVA defendants. The plaintiff countered with a motion for summary judgment against the TVA defendants.

When these motions came on for hearing, it was apparent that it would be necessary, in the disposition thereof, that the Court consider matters in the nature of affidavits and exhibits outside the pleadings. Rule 12(b), F.R.Civ.P. Accordingly, it was agreed by all parties, by counsel, that there being no issue of material fact as pertained to the legal defenses asserted, the Court, without objection, considered the entire matter as on cross-motions for summary judgment.

Only issues of law are before this Court.³ These issues are: (1) whether the Clean Air Act of 1970 requires that the defendants obtain state permits before operating equipment which emits substances into the ambient air and (2) whether the doctrine of sovereign immunity is a barrier to maintenance of this suit.

THE PERMIT ISSUE

Congress recognized that Federal facilities emitted appreciable amounts of various substances into the ambient air. Therefore, it provided in Section 118 of the Clean Air Act for control of pollution from Federal facilities. In pertinent part, Section 118 provides as follows:

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 question which is squarely before this Court is whether Congress intended, by enacting Section 118, to require the Federal Government to obtain permits from state agencies before operating equipment which generated air contaminants. Since this question must be answered in the negative, the defendants' motions must be granted.

All defendants contend that the requirement, in Section 118, that Federal entities "comply with Federal, State, interstate, and local requirements respecting control and abatement of air pollution" simply means that Federal facilities must comply with the emission standards and implementation plans of Sections 109 and 110 of the Act and, except for new facilities, the monitoring and other requirements of Section 114. The legislative history of the Act supports the defendants' interpretation of Section 118.

The Clean Air Act of 1967, 77 Stat. 392, Section 111, required that Federal agencies shall "to the extent practicable and consistent with the interest of the United States and within any available appropriations, cooperate with the Department of Health, Education and Welfare and with any air pollution control agencies in preventing and controlling the pollution of the air . . . ." This provision was changed by the Clean Air Act Amendments of 1970. The following analysis of the legislative history of Section 118 of the Clean Air Act provides an indication of Congress' intent concerning the change from the provision in the 1967 Act to the one in the 1970 Amendments.

On June 10, 1970, the House of Representatives passed H.R. 17255, a bill to amend the Clean Air Act of 1967. This bill would have required each Federal agency to "comply with the applicable Federal, State, interstate, and local emission standards and with the purpose of this Act . . ." emphasis supplied. H.R. 17255, 91st Cong., 2d sess., sec. 111 (1970). The House Report on the bill states, "The legislation directs Federal agencies in the executive, legislative and judicial branches to comply with applicable Federal, State, interstate, and local emission standards." H.Rept.No.91-1146, 91st Cong., 2d sess., p. 4 (1970), U.S.Code Cong. & Admin. News 1970, p. 5359. On September 22, 1970, the Senate passed S. 4358, a different bill to amend the Clean Air Act of 1967. The bill would have directed each Federal agency to "comply with the requirements of this Act in the same manner as any other person would so comply . . ." emphasis supplied. S. 4358, 91st Cong., 2d sess. sec. 118 (1970). The Senate Report on the bill states, "This section requires that Federal facilities meet the emission standards necessary to achieve ambient air quality standards as well as those established in other sections of Title I" emphasis ours. S.Rept.No.91-1196, 91st Cong., 2d sess., p. 23 (1970). Other sections of Title I of the Senate bill set forth emission standards for "new sources" (§ 112), "selected air pollution agents" (§ 114), "hazardous air pollution agents" (§ 115), and inspection, monitoring and entry provisions (§ 116). The above statement from the Senate Report clearly indicates that the "requirements" which the Senate bill would have Federal facilities comply with were the substantive emission "standards" set forth in the Act and other Title I provisions. The Senate bill did not require, any more than the House bill, Federal compliance with State procedures. Both the House and Senate language were changed by the Conference Committee. The new language, which was enacted by Congress, requires Federal facilities to "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." Concerning this new language, the Conference Report states, "The House bill and the Senate amendment declare that Federal departments and agencies should comply with applicable standards of air quality and emission." H.Rept.No.91-1783, 91st Cong., 2d sess., p. 48 (1970), U.S.Code Cong. & Admin. News 1970, p. 5381.

It seems apparent, therefore, that Congress at all times contemplated a self imposed policy of Federal compliance with all applicable standards, but at no time contemplated subjecting Federal facilities to State procedures. If Congress had intended to abandon the well established doctrine, which has its basis in the Supremacy Clause, that the Federal Government is immune from attempts by states to subject it to state regulatory measures,⁴ it would have so stated.

It must be noted, moreover, that Congress was sensitive to the issue of federal-state relations in enacting the Clean Air Act and, in a number of instances, expressly stated the manner in which Federal and State authority would interact in the case of Federal facilities. Since Congress expressly granted authority to the states concerning some aspects of the Clean Air Act's impact on Federal facilities, the plaintiff's argument is, in essence, based on the contention that certain other grants of authority to the states must be implied from the phraseology of Section 118 of...