HANCOCK v. TRAIN

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Argument of David D. Beals

Chief Justice Warren E. Burger: We will hear arguments first this morning in Hancock, the Attorney General of Kentucky against Train the administrator of EPA.

Mr. Beals you may proceed when you are ready.

Mr. David D. Beals: Mr. Chief Justice and may it please the Court.

This case arises on a writ of certiorari to the Sixth Circuit to review that court's interpretation of the Cleaner Act Amendments of 1970 as that Act concerns the relations of the Commonwealth of Kentucky and the operator and the respondent operators of existing Federal Air Contaminants Sources located in the Commonwealth Kentucky.

With the passage of the Cleaner Act in 1970, the Congress set forth the clearly define and discernible plan for the enhancement and enforcement and protection of the air resources of the United States. Basic to this plan were minimum standards to be prescribed by the EPA administrator under Section 109.

The Congress stated the means by which these standards would be put into effect.

In Section 107, directing that the states would have implementation plans to achieve and maintain the national primary and secondary Ambient Air Quality Standards.

That these plans were state plans, is entirely consistent with the rest of the scheme of the Act.

In 101(a), one of the findings of the Congress with respect to air pollution was that it was the primary responsibility of the State to control and abate air pollution at its source.

Indeed, Section 101(b) listed as one of the purposes of the Act to assist the states and local governments in the formulation and execution of their air pollution programs.

As to what these programs should at a minimum contain, Congress was also very explicit.

In Section 110, they listed a number of requisites which had to be included in any one county implementation plan.

Among these the basic requirement of the plans was that the plan provide for the attainment of the primary standards as expeditiously as possible and in no case, more than three years following approval.

Also required in 110 were provisions for emission limitations, schedules, timetables for compliance and such other measures as might be deemed necessary to meet these standards.

But in addition to these emission standards, 110 also specified that the states had to incorporate into their plan, appropriate devices, methods and systems for monitoring, compiling and analyzing data and making this data available to the administrator, appropriate procedures and systems for reviewing the location and new sources, appropriate procedures to ensure that no emission in one air quality region would cause or interfere with the attainment of the standards and in the other air quality region.

It also called for adequate personnel spending and authority on behalf of the state to carry out the plan.

It required that the plan have authority to require the installation and monitoring equipment to require periodic reports from air contaminant sources, to correlate this data received from these reports to the emission standards that were currently existing and required authorization to restrain any air pollutant source which was presenting an eminent and substantial danger to health.

The contention of the common law of the Kentucky that these requirements, all of the requirements listed in 110, all the requirements which are contained in the states implementation plan are requirements respecting the control and abatement of air pollution.

Justice Harry A. Blackmun: Mr. Beals, do you envisage situations where the state would not grant a Federal installation of permit?

Mr. David D. Beals: Yes, Mr. Chief Justice, I envision a situation where if the control strategy proposed by a Federal source will in the opinion of the State Air Pollution Control Agency not result in the attainment of the ambient standards, will not result in the meeting of the admitting standards that that Federal source would have to redraft its control strategy, its compliance schedule so that it would indeed meet these standards as required by the act.

Justice Harry A. Blackmun: So you would stop at the permit stage rather than later?

Mr. David D. Beals: At the permit stage, these things can be worked out.

We say your strategy is not sufficiently stringent to meet our standards.

Your emissions are too high to maintain the air quality required.

Therefore you have to incorporate more standards.

This is as opposed to later finding that they are indeed in violation of the standards and presumably shutting down, that is a possibility, highly, unlikely that any of the agencies would be indeed shut down by they would be subject to daily --

Justice Harry A. Blackmun: So you are zeroing in on something more than merely identification on the source of pollution?

Mr. David D. Beals: We are indeed Your Honor --

Justice Harry A. Blackmun: At the permit stage?

Mr. David D. Beals: The implementation plan as expressed by Congress contains considerably more than just identification of the sources of pollution and it contains considerably more than simply emission standards.

It contains the entire mechanism for bringing these standards into being for --

Justice Harry A. Blackmun: Of course you could do that by a compulsion suit later, could you not after the permit is issued?

Mr. David D. Beals: That would hardly be prevention Your Honor.

We might be able to abate any violations that came up later.

But it would hardly relate to any sort of preventive concept, since the time for prevention is before the attainment dates.

What we are talking about is a pre-attainment period seeing to it that these control strategies are moving into proper direction, that the strategies will indeed result in reduced emissions, will indeed result in the air quality of the entire Air Quality Control Region being raised to a level expectable under the minimum standards, minimum primary and secondary standards.

Chief Justice Warren E. Burger: Is it not the environmental agency state that it would submit all of the information which is called for about the application but would not submit it in the form of an application for reasons which were given.

Now, does that not give you everything that the application would give you?

Mr. David D. Beals: Yes Mr. Chief Justice, that gives everything that the application would give you but it does not give you what the permit requires.

The application for permit is not an automatic issue in some department.

Unknown Speaker: Well, as Mr. Justice Blackmun’s suggestion why not wait until you have the problem and then go in on the enforcement where the environmental agency raises no question.

Mr. David D. Beals: Once again Your Honor, the ambient standards are interfered with the attainment and likeness of the ambient standards are interfered with if we --

Chief Justice Warren E. Burger: Well, cannot you not tell them that when they submit the data that they have offered?

Mr. David D. Beals: But the data they offer is just a status report.

That is a listing --

Chief Justice Warren E. Burger: Everything you get in an application?

Mr. David D. Beals: Yes but the process does not stop at the application.

The process goes on.

We use the information that we get from the application to determine what sort of controls are necessary, to determine what kind of emission standards are necessary to be imposed.

This does not stop with just getting the information and finding out where we are and waiting until three years later to see if we got any better.

Chief Justice Warren E. Burger: Do you say if you really had the authority to require permit you could say no to an application, whereas if you do not have the authority require permit, all you can do is kind of file what they are doing and not say no?

Mr. David D. Beals: That is correct.

That is what we can do right now.

That is what we have been doing for the last three years.

Chief Justice Warren E. Burger: But if you read the government’s brief, you get the impression that the government installations will fully comply with the substantive requirements and presumably EPA and that is what is regulating the government’s installations would be saying no in place of the State agency.

Mr. David D. Beals: That would have been fine, if the administrator had come in 1972 under 313 when the implementation plan broke down when they refused to comply with the implementation plan, what the installations, what the respondents have done so far is when requested not on the basis of a periodic report, when requested they have submitted a status report.

This is not similar to a compliance schedule.

The respondents are not operating under any approved compliance schedules because the compliance schedule is the end result of the process that starts with the permit application.

The position of the government that they are to comply with compliance schedules and emission standards is generally hard for me to follow since there are no compliance schedules.

Chief Justice Warren E. Burger: The compliance schedule originates at the time, the permit is issued?

Mr. David D. Beals: That is correct Your Honor.

The way the Kentucky permit system functions, the information is received on the applications.

That information is analyzed to see what steps are necessary to bring the source into compliance.

If the source is already in compliance, then a permit may be issued.

If a source is not in compliance then no permit will be issued until a compliance schedule which will bring the source into compliance within the attainment days has been agreed to by the source.

Justice Thurgood Marshall: Mr. Beals, that is the information the government did furnish you was that acceptable or rejected?

Mr. David D. Beals: It was taken as what it was.

The original --

Justice Thurgood Marshall: Well, that has not been in the form of an application would have permit, when you grant it or not.

Mr. David D. Beals: In some cases perhaps it would have been.

In most cases --

Justice Thurgood Marshall: What about in this case?

Mr. David D. Beals: Well, this case deals with quite a number of different respondents.

Justice Thurgood Marshall: With any (inaudible)?

Mr. David D. Beals: Some of them may have gotten the permit.

Some of them --

Justice Thurgood Marshall: Well, do you have a complaint on those?

Mr. David D. Beals: The complaint?

I do not understand the question Your Honor.

Justice Thurgood Marshall: Well, I mean you just want the formality of asking for permit?

Mr. David D. Beals: No, we want the cooperation.

Justice Thurgood Marshall: How about those that did meet the standards?

The only thing the objective of the government did also say we want a permit, is that right?

Mr. David D. Beals: Well, they did not apply for a permit.

Justice Thurgood Marshall: But they give you all the information that they would have given, if it applied for permit?

Mr. David D. Beals: Only those few sources and I am not sure how many of them, there are which would be in compliance.

In fact, the information only application is just the preliminary information through which the analysis could start.

It would still require some further information, further cooperation by the respondents.

As to those sources which would not be in -- we have asked for the further information.

We get status reports.

Justice Thurgood Marshall: I thought all you asked for was that did they applied for permit.

Mr. David D. Beals: In asking that they applied for a permit, we are asking that they submit to our entire implementation plan system.

Justice Thurgood Marshall: But I thought you just wanted to go through the formality in some instances?

Mr. David D. Beals: Well, in the instances where they are already in compliance, I agree if they applied for permit, they would be granted a permit.

But those are a very few and far between sources which are already in compliance.

They have already met all of the emission standards.

In addition, the information that we gather from these applications are necessary in order to determine at what level the emission standard should be set.

It is not just an automatic process that they apply for a permit, they get a permit.

What they have to do is go through the permit process.

The determination is made but whether or not these strategies will bring them into compliance with the ambient standards, they will be in compliance with the emission standards which are set through the information.

The air quality control region is analyzed to determine what sources are there, what levels of control need to be placed on these sources.

Only through this process, can the emission standards be set.

Now, the fact that the initial information was put in is just the very first step in the whole permit process.

There is a considerable amount of planning required in determining how to bring a plant such as the Shawnee Power Plant of the Tennessee Valley Authority into compliance with the emission standards within three years.

In fact, it has not been done under the system that the government suggests where the only standards which they have to meet are the emission standards and compliance schedules.

This is very similar to the method of implementation that was considered in Train, they discussed the Florida method where we just told in three years you have to be in compliance.

And that was it.

This method was discouraged by EPA.

This is the method we have.

We say, we are turning it loose but in three years, you have to be there.

The state suggests that this is a regulatory statute that the state has some expertise in determining what their air quality control regions require in terms of emission standards.

In developing these emission standards for the particular areas, the Louisville, for instance, the Louisville Air Control Region has considerably more stringent standards than the Bowling Green air control region.

This is developed through a complete control over each stationary source in the commonwealth.

We have to analyze the data from each of these sources in order to make the standards for all.

For the Section 118 --

Chief Justice Warren E. Burger: (Inaudible) at least for me fully answered the questions of Justice Blackmun or Justice Marshall or the ones I was trying to put.

If the environmental agency is prepared to have the Federal facility to everything that it would do except the formality of the application and that you are free to respond in the same way to that issue would be to a formal application in terms of setting up the schedule, then what are we really here for?

Mr. David D. Beals: We are here for the fact that they have not than that.

Chief Justice Warren E. Burger: Well have you responded to the informal approach just the way you would to a formal application?

Mr. David D. Beals: Perhaps not but we have not had the same information.

Chief Justice Warren E. Burger: That is the starting point.

Mr. David D. Beals: Well, the informal approach nonetheless is totally unrelated to our implementation plan.

The Congress said that we have to have this authority.

They said that this is essential to achieving thee plans and what these respondents have declared is that none of these are the things are essential to achieving these standards except the emission standards.

No other way to compliance schedules come into being.

They have not, as I say, we have not gotten control strategies from these sources.

We get status reports which they say, right now we are putting out this much emission.

We are installing this sort of equipment.

There is no opportunity or review to control strategies.

There is no opportunity review to control strategies in light of the rest of the air quality control region.

Unknown Speaker: Mr. Beals, may I ask you a question?

Is there anything in the statute that provides in substance that if a point source is in compliance with the standards, emitting the wrong kind of material but does not have a permit that it is in violation of the Federal statute, does the Federal statute require a permit and provide that the failure to have a permit, there is some kind of remedy for that even though there is compliance with the substantive standards.

Mr. David D. Beals: Not specifically Your Honor.

The Federal statute requires that the states draw an implementation plan containing a certain set of authorities.

Now, the majority of substantial majority of the states have adapted a permit system in order to accomplish this.

The permit system integrates all the requirements of 110.

It integrates all the control necessary.

Unknown Speaker: That is purely a state requirement, the permit itself.

Mr. David D. Beals: Well, it has been approved.

Unknown Speaker: It is a state technique for implementing Section 110.

Mr. David D. Beals: Well, yes, but it has been approved by the Federal EPA.

It has been published as regulations of the Federal EPA.

In effect, the Kentucky implementation plan is the Federal implementation plan for the Commonwealth of Kentucky.

Unknown Speaker: Well, the reason I asked, I was wondering what would happen if the Federal point source were in compliance with the substantive standards and simply refuse to get a permit.

What Federal statutory remedy would there be that Kentucky could assert against the Federal point source?

Mr. David D. Beals: The Federal statutory authority?

Unknown Speaker: Yes.

Mr. David D. Beals: I take it, that there would be not.

Unknown Speaker: So there really have been –-

Mr. David D. Beals: However, if Section 118 clearly makes that is the Federal Statutory Authority which makes all state and Federal requirements respecting control and abatement of air pollution applicable to each of these Federal respondents.

In that regard what we adapt as a requirement respecting control and abatement under Section 110 which is republished as a Federal requirement respecting control and abatement of air pollution by the Federal EPA.

We would think that those would be Federal requirements that are –-

Unknown Speaker: Well, that is the remedy that you pursued this litigation is it not?

That is the remedy.

That is a remedy.

That is the reason this case is here.

You began a lawsuit asking for a declaratory judgment and an injunction.

Mr. David D. Beals: That is correct.

Unknown Speaker: That is a remedy to enforce your permit system, is it not?

Mr. David D. Beals: That is exactly.

Yes, we are preceding under 118.

We are saying that there is a Federal duty under Section 118.

Unknown Speaker: Then what you really want is some kind of reports other than the status report?

Mr. David D. Beals: Well, the point where you –-

Unknown Speaker: Why do you not go up to those instead of going out with permit?

Mr. David D. Beals: Because the permit will give us everything. The permit will get us –-

Unknown Speaker: Or you just want to show up with?

Mr. David D. Beals: Administratively, it is practically impossible to go after each requirement of the permit system individually.

We would have to go after emergency, episode regulations separately.

We would have to go after monitoring separately --

Unknown Speaker: Could you not file the same suit to require them to file these reports?

Mr. David D. Beals: Well, other than the proliferation of Federal District Court suits that that would bring on.

That just is not what we consider the plan, that the Congress had for the enforcement of the standards.

That puts us in Federal District Courts suing every two weeks, if the periodic report does not come in on time, we have to follow another suit to get the same information again.

Chief Justice Warren E. Burger: Has the Congressional program broken down in the states that do not have a permit procedure?

Mr. David D. Beals: It has indeed Your Honor.

The implementation plan –-

Chief Justice Warren E. Burger: Where do we find that in the record?

Mr. David D. Beals: I find that in the record by the fact that none of the respondents herein are committed to compliance schedules.

You will find that in the record in May of 1975, a month-and-a-half before the attainment dates.

The EPA is just then trying to find out whether anybody is in compliance.

In a publication, in a Federal register, the EPA has put out their guidelines to make a firm public commitment, to abate air pollution from Federal sources.

This is exactly the same thing that the implementation plan require the state to do in 1972 which the Commonwealth of Kentucky did do and had that system been allowed to function as it should as not only as Kentucky law but as a Federal regulation for Kentucky.

Then, the same thing that the administrator is trying to do in 1975 would have been doing in 1972 we would be much closer meeting the standards.

Unknown Speaker: Mr. Beals, let us just go down the road away, assume that you prevail in this lawsuit and the Federal government is required to apply for a permit and after all the negotiations and all of the good faith have been exhausted, let us assume the appropriate Kentucky authorities conclude that the -- let us take Fort Knox is not in compliance with the standards.

What do you then, do you try to get an injunction to close down Fort Knox?

Mr. David D. Beals: Well, that would be the direction of the Clean Air Act that is what they say that we should do.

Unknown Speaker: What section of the Act suggests that Congress intended to allow any state to close down Fort Knox?

Mr. David D. Beals: Well, no section suggests that we should be allowed to close down Fort Knox.

However, as in terms, as far as the Air Pollution Control measures taken by Fort Knox, we should be allowed to review them.

The citizens of the Commonwealth of Kentucky are breathing air, we have the Air Quality Control Regions and there is no reason why under the Federal Act, and under the direction of 118 which declares that they shall comply with requirements respecting that they cannot produce a compliance schedule.

Unknown Speaker: This is a national statute we are talking about.

Consider the example of Tennessee Valley Authority which operates in several states in addition to Kentucky, it is at Tennessee and Alabama, perhaps others.

If Kentucky undertook to shutdown a part of TVA, of the Tennessee Value Authority, would that have any impact on its operation in other states?

Mr. David D. Beals: Well, I take that it would but the possibility of shutting down EPA and TVA all together is very, very remote.

We would be going after penalties in terms of -- as a matter of fact, the state of Alabama has recently filed suit against the Tennessee Value Authority for exactly, for violating the emission standards under the their implementation plan.

In that case, they are seeking substantial penalties until the sources brought in to compliance.

Unknown Speaker: It is not like what presumed.

What I am asking you is it the purpose of the lawsuit to shutdown the entire operation of the TVA?

Mr. David D. Beals: It is not just the purpose.

It is the purpose of that lawsuit to compel TVA to bring their source into compliance with the air pollution control requirements.

Unknown Speaker: That is quite similarity, as it would be against any utility company?

Mr. David D. Beals: That is correct, just exactly as it would be against any other utility company.

Unknown Speaker: And certainly Congress contemplated that, is it not?

When it said that the Federal installation should be subject to the least of the substantive requirements of the state program?

Mr. David D. Beals: But the Congress did not contemplate that they would be subject only to the substantive --

Unknown Speaker: But Congress contemplated at least that.

Mr. David D. Beals: At least that --

Unknown Speaker: That the TVA and Fort Knox would be subject to the substantive requirements of the state program?

Mr. David D. Beals: That is correct Your Honor.

But as it comes in, they are not subject to the means of reaching those ends that every other public utility in the Commonwealth of Kentucky has to go through.

They have to come in with a compliance schedule which is approvable by the state which will get them to that point other than to just say that three years from now, we are going to be subject to these things, to these penalties, so we are going to meet the standards.

This is a regulatory statute.

We plan to get the source into compliance.

It is not a question of saying in three years; you are going to have to be responsible to meet these standards I hope you make it.

That is not what the state does.

The state comes in and they plan it.

They see to it.

They say your plan is not adequate.

Then TVA says we will do this.

The state then says well okay that is fine.

Unknown Speaker: And so far as you know is EPA undertaking any parallel monitoring of Federal facilities to see that they come into compliance with the state requirement?

Mr. David D. Beals: In 1975, a month-and-a-half before the attainment dates, the Federal EPA was trying to determine the compliance status of Federal sources and to get them to enter consent agreements, if they were not in compliance, consent agreements which are exactly identical in every respect to what a compliance schedule would have been.

Unknown Speaker: Well do you say if they have been subjected to the permit program you would have had those on in 72 and not 75?

Mr. David D. Beals: That is correct.

The fact that the attainment dates and in addition to that the Federal administrator is talking about bringing the sources into compliances expeditiously as practical.

We were talking about bringing them in three years.

We were talking about trying to arrange it so that they would be in compliance at the end of a three-year period.

EPA apparently is still not talking about that.

I would like to reserve what time I have remaining for rebuttal.

Chief Justice Warren E. Burger: Mr. Friedman?

Argument of Friedman

Mr. Friedman: Mr. Chief Justice and may it please the Court.

I would like at the outset to advert to the question that Mr. Justice Rehnquist just put to my opponent, what if anything the Environmental Protection Agency is doing to ensure compliance by Federal facilities with state pollution standards.

It is doing a great deal.

It has its own office called the Office of Federal Activities whose sole function is to ensure that Federal facilities do come in to compliance.

The record contains numerous items of evidence showing that the various Federal facilities in the Commonwealth of the Kentucky have supplied a great deal of information, a great deal of data have worked closely with the state authorities to ensure that as quickly as possible the Federal facilities do come in to compliance with the state emission standards, that is what we are talking about the substantive standards that the state has imposed in implementing the Federal plan --

Justice William H. Rehnquist: Can it be candidly said Mr. Friedman that the EPA is treating the Federal facilities just as the Kentucky Agency would be treating private facilities?

Mr. Friedman: I think it can.

We endeavored to do that and indeed there is document in the record of direction from the regional administrator which instructs all the Federal facilities to work closely, to cooperate with the state authorities and to submit to them their own plans, their own schedules.

There is a great deal of informal discussion and communication.

I mean, the compliance standard for major installation; it is not a simple thing.

It is very complicated.

There are all sorts of standards.

They are problems about the technology available.

It is not something unfortunately that can be done very quickly.

It does take time but the Federal facilities are moving as rapidly as possible to try to accomplish this.

And this is we think precisely what Congress intended in Section 118 of the Act when it said that the Federal facilities are to comply with state and local requirements with respect to the emission of the pollutants.

The question in the case basically is whether when Congress used that word “requirements” in there, it intended also to subject the Federal instrumentalities to the various procedures that the state might work out in order to accomplish compliance within the state with these various requirements.

Chief Justice Warren E. Burger: And those as possible that each of the states has its own, it is likely that each have their own schedules and own notions about how the compliance can be accomplished so that there will be no uniformity applicable to all Federal installations, is that the way?

Mr. Friedman: That is correct Mr. Chief Justice because now all states have permit.

Some call them permits.

Some call them registration, there is a wide variety in the plan.

But I think it is essential and I think this has been brought out in the colloquy with my opponent as to what we really are talking about here.

What the state is saying is it wants the authority to control the way in which the Federal instrumentalities are operating within the Commonwealth of Kentucky.

What the state permit regulation provides is that you must have a permit in order construct, use, operate or maintain an air contaminant facility.

And I think it was brought out very clearly that if the state believes that Fort Knox is not complying with its standards, it can shutdown Fort Knox.

I think this whole concept that the state somehow has a veto power over the operation of Federal facilities runs and flies in the face of the jurisprudence of this Court for more than 150 years, that ordinarily unless there is a clear indication that Congress intended to do so, that these Federal facilities are not subject to control by the states and that the states cannot require Federal facilities to obtain a permit.

Unknown Speaker: Well, everybody agrees with that Mr. Friedman, I think we do not need to go into that.

The question of this case is the meaning of Section 118.

Mr. Friedman: And whether in 118 Congress has –

Unknown Speaker: Precisely!

Mr. Friedman: -- precisely and clearly indicated that the Federal facilities are -- but I think in determining, I think Mr. Justice in determining whether 118 has that effect, it is important to keep in mind this broad back --

Unknown Speaker: But if does not have that effect then you win.

Mr. Friedman: That is correct.

Unknown Speaker: And if it does, you lose.

Mr. Friedman: That is the thing but our submission is that before one can conclude the Congress intended to subject the Federal facilities to this kind of state control there has to be some clear indication that Congress did so.

And our submission is there is nothing in this statute that indicates that Congress intended to subject the Federal facilities to state permit requirements.

My opponent has considered there is nothing explicit.

And when one looks at the legislative history --

Unknown Speaker: He concedes what in this agreement?

Mr. Friedman: I thought as I understood it --

Unknown Speaker: He says the plain meaning of the language is very explicit as I understood it.

That is quite a lot for him to claim.

He says the statute on its face covers it.

Mr. Friedman: Well, but he has conceded.

He has conceded Mr. Justice --

Unknown Speaker: No, he concedes there is nothing else maybe?

Mr. Friedman: No he is conceded there is nothing in the statute that explicitly refers to permits.

Unknown Speaker: There is nothing in the statute that refers to substantive requirements either.

Mr. Friedman: It says it used the word “requirements.”

Unknown Speaker: Well it does not say substantive.

Mr. Friedman: It does not say substantive but --

Unknown Speaker: It does not say procedural.

Mr. Friedman: It does not.

Unknown Speaker: so which one would you like to leave out?

Mr. Friedman: Well, it is not, with all due respect Mr. Justice it is not a question of leaving it out.

Unknown Speaker: Well which one would you think that would be included?

Mr. Friedman: We think it means only substantive.

We think it means only substantive and we think that is.

Unknown Speaker: But why?

Mr. Friedman: Because that is precisely we think what the legislative history of this statute shows that what Congress is intending to do in this statute.

Unknown Speaker: But if it means only substantive requirements then is it not EPA under a duty to enforce just as rigorously against the Federal facilities, the state's substantive requirements so that Fort Knox will be shutdown if it does not comply?

The only question is whether it will be shutdown by the Kentucky Commission or by the EPA.

Mr. Friedman: Well, I do not think that the shutting down –- I agree that the Federal administration is required to enforce the standards just as rigorously as the state is doing.

That is precisely what we do but the question of shutting down Fort Knox it seems to me is not a substantive standard and I would think that that is a matter for the Federal authorities to decide if they feel it is necessary to shut down Fort Knox because it is not complying with the pollution requirement.

Unknown Speaker: Well, then you are talking about a good deal more than just a permit requirement.

You are talking about the remedies that may be imposed for failure to comply with the substantive standard?

Mr. Friedman: But the remedies Mr. Justice, the remedies are themselves tied into permit requirement because if you have a state permit requirement then you cannot operate unless you have obtained the permit.

Now it seems to me that is a very different kind of think than the situation where there is an obligation on the Federal facilities to comply with the state substantive standards but if there is non-compliance, there are two remedies available either the state can sue as the state of Alabama is suing TVA or alternatively the Federal authorities can take whatever steps are necessary to bring the state, the Federal facilities in the state into compliance.

Unknown Speaker: But you say that even though the state commission dealing with says the Kentucky Power Company.

If it were doing the same thing could order the facility shut down if it have not complied in 90 days.

The EPA given precisely the same situation with respect to the Power Plant at Fort Knox can say, try to come around as a matter of committee in five years.

Mr. Friedman: Well it does not say Mr. Justice with all due respect to try to come around within five years.

They tell them that they have to comply and they are taking every step possible to comply as rapidly as possible.

Unknown Speaker: This is before us now?

Is any remedy issue before us now or is it only the application question before?

Mr. Friedman: Well, the only question really is whether the state can require the Federal facility to obtain a permit.

Chief Justice Warren E. Burger: So it would be another case and another day when we have to deal with the question of whether they can close Fort Knox?

Mr. Friedman: Yes, and I would hope that it would never come to that but the state apparently claims the power.

That is the thing.

Under the argument that it can apply its permits to the Federal facilities the state would claim the power.

Unknown Speaker: Well, of course the President of the United States has the – You have that escape clause --

Mr. Friedman: There is in an escape clause but it has been interpreted rather narrowly because it says in the paramount interest of the United States.

Unknown Speaker: And I would suppose the President can interpret it and make a finding that it is in the paramount interest of the United States --

Mr. Friedman: Not close.

Unknown Speaker: To keep Fort Knox open.

Mr. Friedman: Yes, but it is not just that.

It is a lot of other things in connection with the permit, the way in which the Federal facility operates.

For example, one of the facilities involved in this case is the AECs gases diffusion plant which enriches uranium.

Now, I suspect there is probably a fair amount of pollution involved in that and steps are being taken but the notion that the State Commonwealth of Kentucky can in effect say to the Atomic Energy Commission unless you do not operate this plant the way we want you to, you will not get a permit and threaten them with closing down.

It seems to me that before one could find that Congress intended to give the states that kind of power there have to be some very clear indication of it.

Unknown Speaker: Mr. Friedman, can I be sure, I understand your position?

Assume a facility does not comply with the substantive requirements forgetting the procedure and the permits for the moment --

Mr. Friedman: Yes.

Unknown Speaker: -- And assume the president has not made an exception, would you not agree that the state could then close a facility down?

Mr. Friedman: I would not think it could close it down Mr. Justice. It could bring a lawsuit under Section 304 --

Unknown Speaker: Well then, and would the lawsuit not have merit?

Mr. Friedman: I would think so and I would think --

Unknown Speaker: Of course, the Court would have to decide.

But what would be the defense be to such a suit?

Mr. Friedman: I do not know.

Unknown Speaker: If you assume a violation of the substantive requirement?

Mr. Friedman: If one assumes that I would think the Court would order them to comply and if they fail to comply, the court has whatever sanctions are available to compel compliance.

I would assume that once a court tell the Federal facility that it was not in compliance in order for it to comply it would comply.

One must assume that I think.

Unknown Speaker: We do not have any question that we have to comply with the standards.

Now, what does the legislative history show about what Congress intended in Section 118?

Mr. Friedman: The original Bill that was passed by the House directed that Federal facilities would have comply with local emissions standards.

And the House Committee report on the Bill said the same thing that would direct the Federal facilities to comply with local emission standards.

Now, if that is all that you had, there could be not much question.

We think that clients with local emission standards means that and does not mean complying with permit standards.

The Senate Bill use different language.

It said it should comply with the requirements in this Act in the same manner as any other person should comply but the significant thing to us is that the Senate Committee in reporting this Bill saw no difference apparently between the word 'requirements' in this Bill and a emission standards in the House Bill because it said that the purpose of this section using the words “requirements” was to acquire Federal facilities to meet the emissions standards necessary to achieve ambient air quality standards as well as those established in other sections of Title 1.

Now, when the conference committee came along and adapted the language now in the Bill to comply with their requirements to the same extent as every other person what it said is that the language it was using required that the government comply with requirements respecting control of air pollution that it said, this House Bill and the Senate Amendment declared that the Federal departments and agencies should comply with applicable standards of air quality and emission standards, standards of air quality and emission.

Now if the conference committee believed that in using the word of the Senate Bill “requirements” rather than using the word “emission standards” of the House Bill that it would somehow changing the standard.

It seems to us, most extraordinarily that it did not indicate that to the contrary what it indicated is that it view the same the two phrases as meeting the same thing.

And this is I think particularly brought out by the fact that the very next sentence in the conference report points out that in one respect, it was changing the bills.

What it said was the conference substitute modifies the house provision to require that the President rather than the administrator of EPA be responsible for assuring compliance by Federal Agencies.

Now, it pointed out the change it was making and saying that it was to be the president rather than the administrator of EPA who is responsible for ensuring Federal compliance by Federal agencies but yet it treated the word emission standards and requirements in the two versions of the legislations as meaning the same thing and the same thing it said it meant was standards of air quality and emission.

Moreover, it seems to us would be most extraordinary we think, that after the conference committee said that it was giving the president, responsibility for ensuring compliance with the standards of air quality emissions that it then would have turned around and expected that the president would have to comply with state permit provisions.

Now we have set out at length in our brief a number of respects in which we think the word “requirements” in the statute reflects a congressional intention to cover only the substantive standards and not the procedural ones.

Many of them are rather detailed in technical and not particularly appropriate for oral presentation.

But let me just refer to one particular provision, which I think dramatizes it very clearly that is in Section 110(E) 1(a) and it provides that after the state has approved the plan for compliance.

If a particular emission source is unable to achieve compliance with the deadlines because of technological problems that period for compliance may be extended.

Now, there the requirements with which they can extend the time for compliance because of technological problems, obviously refers to the substantive standards the problems that because of the lack of technology, they are not able to control particular emissions.

It cannot refer in any meaningful sense of the term to any technological problems with respect to seeking a permit.

And if what Congress was attempting to do in that provision was to reach the permit thing.

It seemed to me, it would not have put it in those terms.

Now we have a final point which this Court relied on in its Train opinion last year which is that the administrator of the Environmental Protection Agency, who is the person charged with enforcing this statute has interpreted it as not applying to Federal facilities.

He did it in a 1972 Ruling and a 1973 Ruling.

I should mention that the 1972 Ruling which is embodied in a letter from the regional administrator of EPA in the region involved here at page 57 of the Appendix points out the importance of the Federal instrumentalities submitting their compliance schedules.

It is not just the substantive standards the Federal Instrumentalities are to meet the state compliance standards.

One final point --

Unknown Speaker: The administrator is a party to this litigation, is it not?

Mr. Friedman: Yes, he is a party but he is also a party in the Train case Mr. Justice in which this Court placed considerable reliance on his interpretation.

And indeed, in most litigation which this Court has applied the principle of giving weight to the administrative determinate --

Unknown Speaker: Why does --

Mr. Friedman: It usually is suit to challenge the --

Unknown Speaker: (Inaudible) since the ordinary party does not have?

Mr. Friedman: Well, the ordinary party however does not have the expertise of the administration.

There has been a great deal of discussion here by the Commonwealth as to the importance of the desirability of requiring the Federal instrumentalities to obtain permits.

If this is the most effective way, in which one can assure compliance, that it seems to us is a matter for the Congress to consider because we think that the statute as it is written, its language, its structure, its legislative history rather clearly indicates that Congress did not intend to subject the Federal facilities to state permit requirements.

If that is to be changed, we think it is for Congress to change it and rather significantly there is now pending before the Congress a rather lengthy bill which would revise the Clean Air Act in many, many particulars.

And one provision of that Bill would provide that from now on if this bill is passed Federal facilities would be required to obtain permits from states if the state so required.

That we think is the way in which if Federal facilities are to obtain permits that Congress should make its intention clear and explicit.

Unknown Speaker: Mr. Friedman, before you sit down, would you say it is a fair summary of the legislative history to say that it does not indicate that anybody actually thought of the precise problem that this case would have?

Mr. Friedman: I think that is a fair summary but then our answer is that in this kind of situation unless Congress clearly intended to permit this kind of state authority it should not be implied.

It is the kind of authority we think that has to be provided explicitly.

Thank You.

Chief Justice Warren E. Burger: Thank You gentlemen.

The case is submitted.