Hancock v. Train
| Decision Date | 07 June 1976 |
| Docket Number | No. 74-220,74-220 |
| Citation | 426 U.S. 167,96 S.Ct. 2006,48 L.Ed.2d 555 |
| Parties | Ed W. HANCOCK, Attorney General of Kentucky, Petitioner, v. Russell E. TRAIN, Administrator, Environmental Protection Agency, et al |
| Court | U.S. Supreme Court |
Although § 118 of the Clean Air Act obligates federal installations discharging air pollutants to join with nonfederal facilities in complying with state "requirements respecting control and abatement of air pollution," obtaining a permit from a State with a federally approved implementation plan is not among such requirements. There cannot be found in § 118, either on its face or in relation to the Act as a whole, nor can there be derived from the legislative history of the Clean Air Amendments in 1970, any clear and unambiguous declaration by Congress that such federal installations may not operate without a state permit. Nor can congressional intention to submit federal activity to state control be implied from the claim that under the State's federally approved plan it is only through the permit system that compliance schedules and other requirements may be administratively enforced against federal installations. Pp. 178-199.
497 F.2d 1172, affirmed.
David D. Beals, Frankfort, Ky., for petitioner.
The question for decision in this case is whether a State whose federally approved implementation plan forbids an air contaminant source to operate without a state permit may require existing federally owned or operated installations to secure such a permit. The case presents an issue of statutory construction requiring examination of the Clean Air Act, as amended, 42 U.S.C. § 1857 Et seq., and its legislative history in light of established constitutional principles governing the determination of whether and the extent to which federal installations have been subjected to state regulation.1 The specific question is whether obtaining a permit to operate is among those "requirements respecting control and abatement of air pollution" with which existing federal facilities must comply under § 118 of the Clean Air Act.2
Last Term in Train v. Natural Resources Defense Council, 421 U.S. 60, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975), we reviewed the development of federal air pollution legislation through the Clean Air Amendments of 1970 (Amendments) 3 and observed that although the Amendments "sharply increased federal authority and responsibility in the continuing effort to combat air pollution," they "explicitly preserved the principle" that " '(e)ach State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State . . . ,' " Id., at 64, 95 S.Ct., at 1474, 43 L.Ed.2d, at 737, quoting from § 107(a) of the Clean Air Act, as added, 84 Stat. 1678, 42 U.S.C. § 1857c-2(a). Consistently with this principle, the Amendments required that within nine months after the Environmental Protection Agency (EPA) promulgated the primary and secondary ambient air quality standards required by § 109(a) of the Clean Air Act, as added, 84 Stat. 1679, 42 U.S.C. § 1857c-4(a),4 for certain air pollutants, 5 each State submit to the EPA a plan by which it would implement and maintain those standards within its territory. § 110(a)(1) of the Clean Air Act, as added, 84 Stat. 1680, 42 U.S.C. § 1857c-5(a)(1). See 40 CFR pt. 51 (1975). The EPA was required to approve each State's implementation plan as long as it was adopted after public hearings and satisfied the conditions specified in § 110(a)(2).
Along with increasing federal authority and "taking a stick to the States" 7 by requiring them to implement the federal standards promulgated pursuant to that authority, Congress also intended the Amendments "to strengthen the strictures against air pollution by federal facilities."8 Before 1970, § 111(a) of the Clean Air Act simply declared "the intent of Congress" to be that federal installations "shall, to the extent practicable and consistent with the interests of the United States and within any available appropriations, cooperate with" federal and state air pollution control authorities "in preventing and controlling the pollution of the air in any area insofar as the discharge of any matter from or by such" federal installation "may cause or contribute to pollution of the air in such area."9
Experience with performance by federal sources of air pollution under this voluntary scheme 10 led the Congress to conclude that admonishing federal agencies to prevent and control air pollution was inadequate, because "(i) nstead of exercising leadership in controlling or eliminating air pollution" 11 "Federal agencies have been notoriously laggard in abating pollution." 12 Both to provide the leadership to private industry and to abate violations of air pollution standards by federal facilities, in 1970 Congress added § 118 to the Clean Air Act. The first sentence of the section 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 actity 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." 42 U.S.C. § 1857f.
The remainder of § 118 authorizes the President, upon a determination that it is "in the paramount interest of the United States to do so" and subject to several limitations, to exempt certain federal emission sources from "compliance with such a requirement." 13
After enactment of § 118 there is no longer any question whether federal installations must comply with established air pollution control and abatement measures. The question has become how their compliance is to be enforced.
In February 1972, Kentucky submitted its implementation plan to the EPA. On May 31, 1972, the plan was approved by the Administrator in relevant part. 14 Chapter 7 of the plan included Kentucky Air Pollution Control Commission (Commission) Regulation No. AP-1, § 5(1), which provides:
"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."15
An applicant for a permit must complete a form supplied by the Commission and, "when specifically requested by the Commission, include an analysis of the characteristics, properties, and volume of the air contaminants based upon source or stack samples of the air contaminants taken under normal operating conditions." 16 The process of review of the application may include hearings.17 Permits are denied if the applicant does not supply the "information required or deemed necessary by the Commission to enable it to act upon the permit application," 18 or when "the air contaminant source will prevent or interfere with the attainment or maintenance of state or federal air quality standards." 19 When granted, a permit may be "subject to such terms and conditions set forth and embodied in the permit as the Commission shall deem necessary to insure compliance with its standards." 20 Once issued, a permit may be revoked or modified for failure to comply with the terms and conditions of the permit, with emission standards applicable to the air contaminant source, or with the ambient air standards for the area in which the air contaminant source is located. Reg. AP-1, § 5(5), CA App. 122.
Soon after the implementation plan was approved, a Commission official wrote to numerous officials responsible for various Kentucky facilities of the United States Army,21 of the Tennessee Valley Authority (TVA),22 and of the Atomic Energy Commission (AEC) 23 requesting that they apply for and obtain permits as requested by the EPA-approved plan. The responses to these requests were to the effect that federally owned or operated facilities located in Kentucky were not required to secure an operating permit. Each response, however, either offered to or did supply the information and data requested on the standard permit application form.24
The Commission continued to press the federal officials to apply for operating permits. In October 1972, the Regional Administrator of the EPA sent a letter to the operators of all federal facilities in the region, including those to which the Kentucky...
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