GENERAL MOTORS CORPORATION, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-369

   In The Supreme Court Of The United States

   October Term, 1989

   On Writ Of Certiorari To The United States Court Of Appeals For The
First Circuit

   Brief For The United States

            TABLE OF CONTENTS
   Questions presented
   Opinions below
   Jurisdiction
   Statutory provisions involved
   Statement
      A. The statutory framework
      B. The proceedings in this case
   Summary of argument
   Argument:
      I. The four-month limit for review of original
         SIPs under Section 110(a)(2) does not apply to

## review of proposed SIP revisions under Section

         110(a)(3)(A)
     II. Even if there is a four-month time limit for
         review of SIP revision proposals, EPA is not
         barred from enforcing the terms of an existing
         SIP once that deadline has passed
         A. There is no support in the language or
            legislative history of The Clean Air Act
            for an enforcement bar
         B. Less drastic remedies than an enforcement
            bar are available to address agency
            delay
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 2a-18a) is reported
at 876 F.2d 1060.  The opinion of the district court (J.A. 119-125) is
unreported.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 1a) was entered on
June 7, 1989.  The petition for a writ of certiorari was filed on
September 5, 1989, and granted on December 4, 1989.  The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).

                     STATUTORY PROVISIONS INVOLVED

   Pertinent provisions of the Clean Air Act, 42 U.S.C. 7401 et seq.,
are set out in the Appendix to petitioner's brief and in the Appendix
to this brief.

                          QUESTIONS PRESENTED

   1. Whether a four-month time limit governs the Environmental
Protection Agency's (EPA's) review of proposed revisions to State
Implementation Plans (SIPs) under the Clean Air Act (42 U.S.C.
7410(a)(3)(A)).

   2. Whether, if such a time limit is applicable, the proper remedy
for EPA failure to take final action on a SIP revision within four
months is to bar the United States from enforcing an existing SIP
until EPA issues a final decision on the proposed revision.

                               STATEMENT

   A. The Statutory Framework

   1. In 1970, Congress enacted a comprehensive national program for
combating air pollution.  Clean Air Act Amendments of 1970, Pub. L.
No. 91-604, 84 Stat. 1676.  Before 1970, the federal role had been
limited, and "the States generally retained wide latitude to determine
both the air quality standards which they would meet and the period of
time in which they would do so." Train v. Natural Resources Defense
Council, 421 U.S. 60, 64 (1975).  The results of that approach,
however, were "disappointing," and the 1970 Amendments "sharply
increased federal authority and responsibility in the continuing
effort to combat air pollution." Id. at 64.  Although States continued
to "have the primary responsibility for assuring air quality within
the entire geographic area comprising such State" (Section 107(a) of
the Clean Air Act, 84 Stat. 1678), they were now required to comply
with specific federal criteria concerning the content of the air
standards and the timetable for reaching them.  Train, 421 U.S. at
64-65.

   The basic regime for this new approach to air pollution was set
forth in Sections 109 and 110 of the revised Clean Air Act.  Congress
charged the EPA Administrator with developing "national * * * ambient
air quality standards" (NAAQS).  Section 109(a)(1), 84 Stat. 1679;  42
U.S.C. 7409(a)(1).  /1/ The NAAQS were of two types -- primary (those
necessary "to protect the public health" (84 Stat. 1680)) and
secondary (those necessary "to protect the public welfare" (ibid.)).
The EPA Administrator was required to propose NAAQS for known air
pollutants within 30 days, and finalize the standards within 90 days
thereafter.  Section 109(a)(1);  42 U.S.C. 7409(a)(1).  The revised
Act then required each State to develop and submit to EPA, within nine
months after promulgation of the NAAQS, a state implementation plan
(SIP) to achieve and maintain the NAAQS within the State.  Section
110(a)(1), 84 Stat. 1680;  42 U.S.C. 7410(a)(1).  For its part, EPA
was then required to determine, within four months of the date
required for submission of original SIPs, whether a SIP met certain
statutory requirements (Section 110(a)(2), 84 Stat. 1680;  42 U.S.C.
7410(a)(2)), including attainment of applicable primary NAAQS, "as
expeditiously as practicable" but generally no later than three years
from the date of approval of a SIP (Section 110(a)(2)(A), 84 Stat.
1680;  42 U.S.C. 7410(a)(2)(A)).

   The 1970 Amendments also set forth a procedure for SIP revisions.
The Act requires EPA to approve revisions to existing SIPs if it
determines that a revision meets the requirements applicable to
original SIPs, and that it was adopted by the State after notice and
public hearings.  Section 110(a)(3), 84 Stat. 1681;  42 U.S.C.
7410(a)(3)(A).  /2/ Unlike the provision for review of original SIPs,
the provision for review of SIP revisions contains no express time
limit.  Moreover, the 1970 Amendments specified that, for purposes of
the Act, "an applicable implementation plan" is a plan which has been
approved by EPA.  Section 110(d), 84 Stat. 1682;  42 U.S.C. 7410(d).

   The 1970 Amendments provided various enforcement mechanisms.  The
revised Act empowers EPA to order sources of pollutants to comply with
"an applicable implementation plan" (Section 113(a), 84 Stat. 1686;
42 U.S.C. 7413(a)) and to seek injunctive relief against a source
violating such a plan or violating an EPA order (Section 113(b), 84
Stat. 1687;  42 U.S.C. 7413(b)).  The Amendments also prescribed
criminal penalties for knowing violations of "applicable
implementation plan(s)" and EPA orders (Section 113(c), 84 Stat. 1687;
 42 U.S.C. 7413(c)).  In addition, Congress authorized citizen suits
for injunctions against violators, in the absence of government
enforcement (Section 304, 84 Stat. 1706;  currently codified at 42
U.S.C. 7604).

   2. In 1977, Congress again significantly amended the Clean Air Act.
 Clean Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685.
The legislation was, at least in part, a response to widespread
failure to meet the attainment deadlines in the 1970 Amendments.  See,
e.g., S. Rep. No. 127, 95th Cong., 1st Sess. 12 (1977).  See also
Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 847
(1984).  Among other provisions, the 1977 Clean Air Act Amendments
added to the Act the concept of a "nonattainment area" -- an area
where air quality falls short of NAAQS.  Section 171(2), 91 Stat. 746;
 42 U.S.C. 7501(2).  The Amendments required each State containing a
nonattainment area to prepare and secure EPA approval of a new SIP by
July 1, 1979.  Sections 110(a)(2)(I), 172(b), 91 Stat. 694, 746;  42
U.S.C. 7410(a)(2)(I), 7502(b).  The deadline for attainment of the
primary NAAQS in a nonattainment area was extended to December 31,
1982.  Section 172(a)(1), 91 Stat. 746;  42 U.S.C. 7502(a)(1).
Further extensions were permitted for "photochemical oxidants" (ozone)
and carbon monoxide, but only if the State demonstrated that
attainment was not possible by 1982, despite the implementation of all
reasonably available measures, and that attainment would be achieved
"as expeditiously as practicable but not later than December 31,
1987." Section 172(a)(2), 91 Stat. 746-747;  42 U.S.C. 7502(a)(2).
/3/ The nonattainment area SIPs, moreover, were required to contain
specific provisions designed to achieve NAAQS as expeditiously as
possible.  See Chevron, 467 U.S. at 849.  To this end, the revised Act
required that the plan revisions must "provide for the implementation
of all reasonably available control measures as expeditiously as
practicable" and require, in the interim, "reasonable further
progress" toward reductions in emissions.  Section 172(b)(2)-(3), 91
Stat. 747;  42 U.S.C. 7502(b)(2)-(3).

   The 1977 Amendments also strengthened the Act's enforcement
provisions.  Congress authorized EPA to seek civil penalties;  the
Administrator could now bring an action in district court for civil
penalties of up to $25,000 per day for violations of various
provisions of the Act, including violations of an "applicable
implementation plan." Section 113(b), 91 Stat. 704;  42 U.S.C.
7413(b).  In determining the amount of a civil penalty, moreover, the
district court is directed to "take into consideration (in addition to
other factors) the size of the business, the economic impact of the
penalty on the business, and the seriousness of the violation." Ibid.
Congress also gave the EPA additional authority to impose
administrative noncompliance penalties;  the Administrator could now
assess administratively a noncompliance penalty against any "major
stationary source" in violation of SIP emission limits.  Section 120,
91 Stat. 715-719;  42 U.S.C. 7420.  /4/ The penalty begins to accrue
when EPA issues a Notice of Noncompliance (Section 120(d)(3)(C), 91
Stat. 718;  42 U.S.C. 7420(d)(3)(C)), and is intended to remove the
economic benefit of delayed compliance and place polluters on the same
economic footing as those who had limited their emissions through
increased anti-pollution expenditures.  Section 120(d)(2)(A), 91 Stat.
718;  42 U.S.C. 7420(d)(2)(A).  See also H.R. Rep. No. 294, 95th
Cong., 1st Sess. 72 (1977).

   B. The Proceedings In This Case

   1. The entire Commonwealth of Massachusetts is a nonattainment area
for the NAAQS regarding ozone.  See 40 C.F.R. 81.322;  J.A. 95.  In
1980, EPA approved Massachusetts' proposed nonattainment area SIP.
This SIP required painting operations at automobile assembly plants to
meet increasingly stringent limits on emissions of volatile organic
compounds (VOCs), which are substances that react with other chemicals
in the atmosphere to form ozone.  /5/ Full compliance was required by
December 31, 1985.  Petitioner's plant in Framingham, Massachusetts is
the only automobile assembly plant in the State.  Pet. App. 6a;  J.A.
29.

   2. a. On October 20, 1981, EPA published a policy statement
discussing the automobile industry's development of new technologies
for reducing VOC emissions, including conversion from lacquer paints
to the basecoat/clearcoat process (BC/CC).  46 Fed. Reg.
51,386-51,388;  J.A. 30-37.  EPA announced that it would entertain
proposed SIP revisions intended to allow automakers to install new
technology;  it would extend the date for compliance until 1986, with
some plants requiring until 1987 to convert.  J.A. 33-34.  EPA
cautioned, however, that SIP revisions would need to assure continued
compliance with Sections 110 and 172 (J.A. 30);  Section 172 requires,
among other things, "the implementation of all reasonably available
control technology as expeditiously as practicable" and "reasonable
further progress" toward attainment "in the interim." Section
172(b)(2)-(3);  42 U.S.C. 7502(b)(2), (3).  /6/

   b. Within ten days of EPA's policy statement, petitioner submitted
requests consistent with the policy statement for three of its
assembly plants in other States;  it did not, however, submit such a
request for its Framingham plant.  Pet. App. 6a.  More than three
years later, in November 1984, petitioner requested that the State
extend the December 31, 1985, compliance date by two years (to
December 31, 1987) to give petitioner additional time to install
emission controls on its lacquer coating lines.  J.A. 38-40.  The
State did not, however, submit the request as a SIP revision to EPA.

   Eight months later, in June 1985, petitioner changed its plans.  At
this point -- six months before the ozone emission compliance deadline
that had been in effect in Massachusetts for almost five years --
petitioner proposed converting its Framingham plant to the
basecoat/clearcoat process.  It requested a delay of the SIP standard
until the end of 1987 (the same date that it had requested for its
earlier emission control proposal).  J.A. 41-45.

   c. Massachusetts provided public notice and held a hearing on
December 16, 1985, regarding petitioner's request for an extension of
the SIP compliance deadline.  At this hearing, an EPA representative
expressed reservations about the proposed extension because, among
other problems, the proposal made no attempt to limit emissions during
the extension period.  J.A. 61-62.  On December 30, 1985, one day
before the final compliance deadline in the SIP that had been in place
since October 1980, Massachusetts submitted to EPA a proposed SIP
revision extending petitioner's compliance date for ozone emissions on
automobile coating lines to August 31, 1987.  J.A. 50-74;  Pet. App.
6a-7a.

   3. a. EPA's Region I office began reviewing the proposed SIP
revision.  At the same time, EPA, the Commonwealth, and petitioner
also undertook negotiations in an attempt to resolve petitioner's
noncompliance with the existing SIP by means of a Delayed Compliance
Order under Section 113(d) of the Act (42 U.S.C. 7413(d)).  Pet. App.
7a.  Such an Order would have allowed an extension of the compliance
date while requiring an enforceable schedule of steps toward
compliance and protection from unnecessary emissions during the
interim, neither of which was required by Massachusetts' proposed SIP
revision.

   b. On May 30, 1986, five months after its submission of the
proposed SIP revision, Massachusetts requested that EPA delay action
on the SIP revision until June 20, 1986, to allow negotiations to
continue on a Delayed Compliance Order, which the Commonwealth
considered a better way to resolve the matter.  J.A. 89-90.  Shortly
after that period, on July 2, 1986, EPA Region I sent a draft proposal
to disapprove the SIP revision to EPA Headquarters.  J.A. 88.

   c. On August 14, 1986, EPA sent petitioner a notice of violation.
The notice informed petitioner that it was in violation of the
applicable SIP.  J.A. 75-82.  EPA pointed to data establishing that,
from January 1, 1986 to June 30, 1986, the VOC content in petitioner's
operations at the Framingham plant considerably exceeded the SIP's
emission limits.  J.A. 79.  /7/ EPA's cover letter noted the ongoing
negotiations between EPA, the State, and petitioner regarding a
Delayed Compliance Order, but warned that, if no agreement was reached
in 30 days, EPA would "decide which other enforcement options to
pursue under Sections 113 and 120 of the Clean Air Act." J.A. 75-76.
EPA urged petitioner to confer with the Agency and "discuss the most
expeditious method * * * to come into compliance with the applicable
SIP." J.A. 76.

   d. The negotiations regarding the Delayed Compliance Order did not
bear fruit, and the draft proposal to disapprove the SIP revision,
which had been sent on July 2, 1986, was accordingly reviewed by EPA
Headquarters.  Pursuant to Executive Order 12291, it was also
submitted to the Office of Management and Budget (OMB).  J.A. 96.  On
December 1, 1986, EPA's notice of proposed disapproval was published
in the Federal Register.  51 Fed. Reg. 43,394;  J.A. 91-96.  In the
Notice, EPA pointed out (J.A. 93-95) that the proposed SIP revision
failed to meet several of the criteria for deferral established in
EPA's 1981 policy statement, and in particular failed to require the
implementation of reasonably available control technology as
expeditiously as practicable, as required by the Act (Section
172(b)(2), (3);  42 U.S.C. 7502(b)(2), (3)).

   e. On June 30, 1987, following receipt of public comment on the
proposed SIP revision, Region I transmitted to EPA Headquarters a
draft of a final decision disapproving the proposed SIP revision.
J.A. 88.  This draft was reviewed at EPA Headquarters and again at
OMB.  53 Fed. Reg. 36,014.  On May 5, 1988, petitioner submitted 405
pages of comments and attachments regarding the proposed disapproval,
to which EPA responded in detail.  See 53 Fed. Reg. 36,012 n.1;
General Motors v. Reilly, No. 88-2123 (1st Cir.) (C.A. Dkt. Nos.
69-111).  On September 4, 1988, EPA issued a final decision
disapproving the proposed SIP revision;  the decision was published in
the Federal Register on September 16, 1988.  53 Fed. Reg. 36,011;  see
also Pet. App. 7a-8a.  /8/

   2. On August 17, 1987, the United States filed a civil enforcement
action against petitioner under Section 113 of the Act (42 U.S.C.
7413).  J.A. 7-13.  The complaint alleged continuous violations by
petitioner -- beginning on January 1, 1986 -- of the VOC emission
standards of the existing SIP.  J.A. 11.  EPA had sent a notice of
violation to petitioner almost exactly one year before filing the
complaint.  EPA had published (some eight months earlier) its proposed
disapproval of the SIP revision in the Federal Register;  however, EPA
Headquarters had not yet acted on Region I's draft final decision of
disapproval.

   On petitioner's motion, the district court dismissed the action in
its entirety.  The district court construed Section 110(a)(3) to
impose a four-month time limit on EPA's review of a SIP revision, and
held that, because it exceeded that deadline, EPA was barred from
enforcing the existing SIP for any violations that occurred before
final agency action on the proposed SIP revision.  J.A. 119-125.

   3. The court of appeals reversed and remanded for further
consideration.  The court first agreed with the district court that
the four-month deadline on EPA's review of original SIPs should also
apply to the review of SIP revisions.  Although it found the question
"admittedly * * * a close one" (Pet. App. 11a), the court concluded
that Congress would not have wanted the States' policy choices "to be
held hostage to the EPA's schedule." Id. at 12a.  The court emphasized
that, "by imposing a four-month deadline on the EPA," it avoided "the
possibility that the Agency would have assigned a lower priority to
SIP revisions from First Circuit states than to those from states in
circuits that had imposed a deadline." Ibid.

   The court of appeals disagreed, however, with the Fifth Circuit's
holding in American Cyanamid Co. v. EPA, 810 F.2d 493 (1987), that EPA
is barred from enforcing an existing SIP for the interval between the
end of the four-month period and the time when the agency acts on the
proposed SIP revision.  The court reasoned that an enforcement bar is
too drastic a remedy for agency delay, especially since it penalizes
the public's interest in clean air.  Pet. App. 14a.  The court also
found it likely that EPA would frequently need longer than four months
to issue a considered ruling, and would therefore miss the deadline
even with the incentive of an enforcement bar.  Id. at 13a-14a.  At
the same time, the court rejected the D.C. Circuit's alternative
approach in Duquesne Light Co. v. EPA, 698 F.2d 456 (1983).  As the
court explained, the D.C. Circuit had held that, if a SIP revision is
ultimately rejected, "penalties may be assessed retroactively, with
interest, for the entire period after the deadline." Pet. App. 13a.
Seeking to "steer a middle course between these two extremes" (Pet.
App. 14a), the court concluded that the appropriate remedies for
agency inaction are those provided by the Clean Air Act itself:  (1) a
suit to compel Agency action under Section 304(a)(2) (42 U.S.C.
7604(a)(2)), or (2) a request pursuant to Section 113(b) (42 U.S.C.
7413(b)) for reduction or elimination of penalties during any period
in which unreasonable agency delay resulted in prejudice.  Id. at
14a-15a.

   With respect to the enforcement action in this case, the second
remedy was applicable.  The court noted that Section 113(b) directs
district courts, in assessing any penalties, to "take into
consideration (in addition to other factors) the size of the business,
the economic impact of the penalty on the business, and the
seriousness of the violation." Pet. App. 15a.  Thus, the district
court could "decline to award penalties for * * * unwarranted delay."
Ibid.  The court of appeals noted, "if on remand in this case, the
district court finds that (petitioner) was prejudiced by the Agency's
lengthy review and that the delay was not justified or that some
portion of the delay was not justified, it may reduce the penalties in
a manner it sees fit." Ibid.  The court thus remanded to permit the
district court to consider petitioner's claims regarding "the equities
of this case" (id. at 17a) and for assessment of appropriate
penalties, if any.  /9/

                          SUMMARY OF ARGUMENT

   Section 113 of the Clean Air Act expressly authorizes EPA to bring
actions for injunctive relief and civil penalties against any person
in violation of "any requirement of an applicable implementation
plan." 42 U.S.C. 7413(a)(1).  Petitioner seeks a court-imposed rule
that would limit this explicit grant of authority by barring
enforcement whenever a proposed revision to the applicable SIP has
been submitted to EPA and the agency has not taken final action on the
proposal within four months.  The court of appeals properly rejected
this attempt to impose a limit which Congress never prescribed on
EPA's enforcement authority.

   1. Petitioner's argument begins with the flawed premise that the
four-month limit for review of original SIPs under Section 110(a)(2)
applies to review of proposed SIP revisions under Section
110(a)(3)(A).  The language of the statute does not support this
interpretation.  Section 110(a)(3)(A) requires that the proposed
revision "meet() the requirements" of an original SIP (42 U.S.C.
7410(a)(3)(A));  it does not require that EPA act on a proposed
revision within four months.  The four-month time limit for review of
original SIPs was part of an elaborate timetable established in 1970
to ensure that emission limitations, many of which were already
formulated, could be put into place with maximum speed.  There is no
evidence that Congress expected or required equal haste for SIP
revision proposals.  The latter frequently involve relaxation or delay
of strict emission control requirements.  These are, obviously,
complicated issues requiring careful scrutiny by the agency.  Rather
than the four-month time limit, the statutory standard for agency
timeliness in acting on SIP revision proposals is the Administrative
Procedure Act's standard of reasonableness (5 U.S.C. 555 and 706(1)).
And, in view of the applicable administrative and statutory
requirements, as well as the nature and complexity of the issues,
review of SIP revisions for longer than four months is often entirely
reasonable.

   2. Even if a four-month time limit obtains for review of SIP
revisions, neither the statute nor the legislative history reveals any
intent to eviscerate EPA's authority, after expiration of that period,
to enforce the statute.  Section 113 clearly states that EPA may bring
an action to enforce the "applicable implementation plan" (42 U.S.C.
7413(b)(2));  this Court in Train v. Natural Resources Defense
Council, 421 U.S. 60, 92 (1975), and many lower courts, have made
clear that the existing SIP is the applicable plan until both the
State and EPA have approved a revision.  See Section 110(d);  42
U.S.C. 7410(d).  Accordingly, three Circuits -- the First, Sixth, and
D.C. Circuits -- have now concluded that EPA does not lose authority
to enforce the existing SIP even if a SIP revision has been pending
for more than four months.

   The Fifth Circuit's contrary conclusion in American Cyanamid is
unsupported by statutory language or legislative history, and
conflicts with this Court's decision in Brock v. Pierce County, 476
U.S. 253 (1986).  Brock makes clear that courts should not assume that
Congress intends agencies to lose their power to act when they fail to
meet statutory deadlines, particularly when there are "less drastic"
remedies available.  As the court below found, less drastic remedies
are available to deal with untimely agency action:  either a suit by
the State or the source to compel agency action, or a request by the
source for a reduction of civil penalties where agency delay has led
to prejudice.

   Petitioner's asserted policy reasons for an enforcement bar cannot
override the statutory language and are, in any event, unpersuasive.
The States' role under the Clean Air Act is adequately protected by
the remedies specifically provided by Congress to address agency
delay;  there is no need to infer an additional remedy not provided by
statute and no warrant for doing so.  Indeed, barring the United
States from enforcing the applicable SIP would thwart the clear
congressional intent to remove incentives for delaying compliance with
the strict deadlines of the Act.  What is more, a judicially-created
bar would also disserve the States' and the public's interest in
cleaner air.

   Nor is an enforcement bar needed to address the possibility that an
enforcement action might undermine even-handed consideration of a
proposed SIP revision.  That speculative possibility does not stem
from agency delay, but from Congress's decision to assign both
enforcement and SIP review responsibilities to the same agency.  Even
if a decision on a SIP revision were to be improperly influenced by
the pendency of an enforcement action, Congress provided an adequate
remedy in the form of direct review of the SIP denial in the courts of
appeals, a remedy which petitioner has invoked in this case.  Any
possible prejudice suffered by a defendant in an enforcement action by
reason of EPA delay in reviewing a SIP revision can be addressed by
the court in assessing penalties.  The argument that an enforcement
bar is needed to punish the agency for delay also fails, because it is
the public, not EPA, that would be hurt if applicable SIPs could not
be enforced.

   Petitioner's policy arguments not only fail to persuade, they
misconceive the role of the courts in interpreting statutes.  Where,
as here, Congress has conferred upon an agency an explicit mandate to
enforce "applicable implementation plans," it is not the appropriate
province of the judiciary to carve out exceptions in order to create
policy-based incentives for administrative management.

                               ARGUMENT

   I. THE FOUR-MONTH LIMIT FOR REVIEW OF ORIGINAL SIPS UNDER SECTION
110(a)(2) DOES NOT APPLY TO REVIEW OF PROPOSED SIP REVISIONS UNDER
SECTION 110(a)(3)(A)

   As the court of appeals recognized, Section 110(a)(3)(A), which
governs review of SIP revisions, does not "contain language explicitly
imposing a four-month deadline on the Agency." Pet. App. 5a.  Stating
that the question is "a close one" (id. at 11a), that it is "unlikely
* * * that Congress * * * intended for the states' legitimate policy
choices to be held hostage to the EPA's schedule" (id. at 12a), and
that the States in the First Circuit thus would not be disadvantaged
(ibid.), the court agreed with the rule adopted in other Circuits
applying the four-month time limit for consideration of original SIPs
in Section 110(a)(2) (42 U.S.C. 7410(a)(2)) to EPA's consideration of
SIP revisions in Section 110(a)(3)(A) (42 U.S.C. 7410(a)(3)(A)).  /10/
In so concluding, the court erred.  In light of the fact that the
statutory language does not provide a four-month deadline and the
further fact that in the Clean Air Act, Congress was explicit about
other deadlines, the application of the Section 110(a)(2) deadline for
initial agency approval of SIPs as a Section 110(a)(3)(A) deadline for
subsequent agency review of SIP revisions is unwarranted.  See
Russello v. United States, 464 U.S. 16, 23 (1983) ("'(W)here Congress
includes particular language in one section of a statute but omits it
in another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate inclusion
or exclusion.'").  /11/

   1. As always, "'the starting point for interpreting a statute is
the language of the statute itself.'" Hallstrom v. Tillamook County,
110 S. Ct. 304, 308 (1989).  Indeed, the text itself is the critical
element of the interpretive inquiry, since it is the text itself which
is law.  In this case, the pertinent textual analysis is of Section
110(a)(2), which governs original SIP submissions and explicitly
imposes a four-month deadline on agency review, and Section
110(a)(3)(A), which governs SIP revisions and imposes no such
deadline.

   Section 110(a)(2) contains two sentences.  The first provides, "The
Administrator shall, within four months after the date required for
submission of a plan under paragraph (1) (Section 110(a)(1);  42
U.S.C. 7410(a)(1)), approve or disapprove such plan, or any portion
thereof." The four-month review period thus begins with the date
specified in Section 110(a)(1) -- "nine months after the promulgation
of a national primary ambient air quality standard" or "a national
ambient air quality secondary standard." 42 U.S.C. 7410(a)(1).  Both
Section 110(a)(1) and Section 110(a)(2) were part of an integrated
timetable established in 1970 to ensure that delays in formulating the
original SIPs did not interfere with the 1975 attainment deadline.
/12/

   The second sentence of Section 110(a)(2) provides:  "The
Administrator shall approve such (state implementation) plan, or any
portion thereof, if he determines that it was adopted after reasonable
notice and hearing and that" specified requirements are satisfied, as
set forth in Section 110(a)(2)(A)-(K).  These requirements are the
heart of the federal SIP review process, establishing the minimum
standards for all state plans.

   Section 110(a)(3)(A), which governs SIP revisions, provides in its
entirety, that

      (t)he Administrator shall approve any revision of an
      implementation plan applicable to an air quality control region
      if he determines that it meets the requirements of paragraph (2)
      (Section 110(a)(2);  42 U.S.C. 7410(a)(2)) and has been adopted
      by the State after reasonable notice and public hearings.

The phrasing of this provision precisely parallels the second sentence
of Section 110(a)(2).  Both refer to the substantive standards that
must be satisfied before a plan or revision is approved, and to the
requirement that the State provide notice and public hearing.  But
nothing in Section 110(a)(3)(A) can properly be read as referring to
or incorporating the first sentence of Section 110(a)(2), which
requires EPA to act within four months "after the date required for
submission of a plan under" Section 110(a)(1).  /13/ Indeed, the
language of the Section 110(a)(2) deadline -- "within four months
after the date required for submission of a plan" -- makes no sense in
the context of a SIP revision because revisions are not "required."
Although petitioner reads Section 110(a)(3)(A) as if it said that "the
Administrator shall approve or disapprove any revision no later than
four months after its submission," the statute in fact contains no
such language.  /14/

   2. Congress in 1970 desired to put the basic framework of the Act
-- the NAAQS and the original state plans implementing them -- in
place as quickly as possible.  /15/ The four-month deadline for
approval of original SIPs was part of a scheme enacted by Congress to
get air pollution controls in place swiftly.  /16/ Meeting short
deadlines for these initial steps was considered possible in part
because many States had already developed ambient air standards for
metropolitan areas, some of those standards had already received
federal approval, and various implementation plans were already in
preparation or had been completed under earlier versions of the Clean
Air Act.  /17/

   There is no evidence, however, that Congress expected the same
short deadlines to apply once the original SIPs were in place to
protect public health.  Indeed, the SIP revision authority in Section
110(a)(3) was enacted virtually without comment.  The logical
inference is that, once the protective framework of original SIPs was
in place, the States and EPA would not be expected to maintain the
same hectic pace on matters like SIP revisions, which often, as in the
case here, involve relaxation or delay of strict emission control
requirements.

   3. Petitioner contends (Br. 13 n.14) that the Court should use
Section 110(g) (42 U.S.C. 7410(g)) as an aid to construction of
Sections 110(a)(2) and 110(a)(3)(A).  This provision, added by the
1977 Amendments, permits the Governor of a State to issue a four-month
suspension of portions of a SIP where the State has submitted a SIP
revision "which the Administrator has not approved or disapproved
under this section within the required four month period," and which
is necessary to prevent substantial unemployment resulting from a
plant closing.  42 U.S.C. 7410(g).  Clean Air Act Amendments of 1977,
Pub. L. No. 95-95, Section 107(b), 91 Stat. 692-693.  By its terms,
this provision does not in any way amend Section 110(a)(2) or Section
110(a)(3)(A).  Moreover, there is no legislative history that
suggests, and no reason to believe, that the new provision was
designed to clarify the relationship between Sections 110(a)(2) and
110(a)(3)(A), or to impose a new deadline on SIP revision processing.

   Petitioner's position is apparently that reference in the new
provision to "the required four month period" is an indication that
Congress, in 1977, interpreted the 1970 Amendments as having imposed
such a time limit on SIP revision determinations.  Even if there were
any evidence that Congress was interpreting the 1970 Amendments, the
views of the 1977 Congress would obviously not be probative of the
legislative intent in 1970.  /18/ But there is no such evidence.  The
reference to the "required four month period" was inserted by the
Conference Committee, and the legislative history of the 1977
Amendments does not explain its meaning.  See H.R. Conf. Rep. 564,
95th Cong., 1st Sess. 125 (1977).  The phrase may well be a residual
reference to the four-month period within which the Administrator was
required to approve or disapprove a "temporary emergency suspension"
under the House version of the legislation, /19/ and Section 110(g) is
most reasonably interpreted as contemplating a four-month period for
EPA review of such emergency SIP revisions.  That interpretation
reasonably reconciles all pertinent textual provisions, and is not
precluded by any language of the statute or expression of
congressional intent.  Indeed, the focus of the drafters of subsection
(g) was on situations of economic emergency;  there is simply no
evidence that they intended to speak to the day-to-day processing of
routine requests for extensions or variances.

   4. Even without a four-month deadline, EPA remains subject to
statutory requirements of timeliness.  The Administrative Procedure
Act requires agencies to conclude matters "within a reasonable time"
(5 U.S.C. 555) and provides a remedy for agency action "unreasonably
delayed" (5 U.S.C. 706(1)).  See Costle v. Pacific Legal Foundation,
445 U.S. 198, 220 n.14 (1980).  Measured by this statutory
requirement, EPA review of SIP revision proposals for longer than four
months is -- in the usual case -- not unreasonable.

   In most instances, there is no realistic possibility that EPA can
appropriately take final action on proposed SIP revisions within four
months.  The Administrative Procedure Act's (APA) requirement for
notice and public comment alone is likely to use up most or all of the
allotted period.  See Buckeye Power, Inc. v. EPA, 481 F.2d 162,
170-171 (6th Cir. 1973) (APA notice and comment requirements apply to
EPA decision on SIPs), cert. denied, 425 U.S. 934 (1976);  United
States Steel Corp. v. EPA, 605 F.2d 283, 288 (7th Cir.) (public
comment and response to comments can take several months), cert.
denied, 444 U.S. 1035 (1979).  Requests to extend the customary 30-day
comment period are not unusual and are routinely granted.  As befits
the purposes served by public participation, additional comments
during such an extension may considerably enhance the decisionmaking
process.  See, e.g., United States v. National Steel Corp., 767 F.2d
1176, 1181 (6th Cir. 1985) (comment period extended and SIP revision
rejected because additional comments established inaccuracies in
methodology used to justify proposed revision).  Moreover, the agency
must "respond in a reasoned manner to the comments received, to
explain how the agency resolved any significant problems raised by the
comments, and to show how that resolution led the agency to the
ultimate rule." Rodway v. Dep't of Agriculture, 514 F.2d 809, 817
(D.C. Cir. 1975).  In many cases, as here (53 Fed. Reg. 36,012 n.1
(1988)), comments are received after the close of the comment period,
and considered and addressed by the Agency.  To have any hope of
meeting a four-month deadline, EPA would have to issue a proposed
decision almost immediately after receipt of the SIP revision.  That
would hardly be conducive to reasoned decisionmaking, and indeed would
subvert the important supervisory role that Congress intended EPA to
carry out.  Nor would such precipitous action further the
federal-state partnership embodied in the Act.  In some cases, it
makes more sense to negotiate with a State to bring about an
approvable SIP revision, rather than deny an inadequate proposal
outright.  Additionally, a State may want EPA to hold a matter in
abeyance.  In this very case, for instance, the Commonwealth requested
EPA to delay processing of the SIP revision while it attempted to
negotiate a Delayed Compliance Order with petitioner.  J.A. 89-90.  If
a strict four-month rule applied, EPA would have to reject even
reasonable requests by States for staying its hand.  There is no
reason to believe that Congress would have intended to usher in such
an implausible regime.

   Several other factors likewise contribute to the time required for
SIP revision review.  Because the various States use widely different
methodologies (see J. Bromberg, Clean Air Act Handbook 110-111
(1985)), primary review of SIP revisions is carried out by the
regional offices of EPA which are familiar with the situation in each
State.  In many instances, however, SIP revision proposals will raise
policy questions with nation-wide implications;  hence, review by EPA
Headquarters is also important.  J.A. 98;  see also State
Implementation Plan Processing Reform;  Notice of Procedural Changes,
54 Fed. Reg. 2214, 2215 (1989) (SIP Processing Reform).  Disapprovals
and partial approvals also must undergo Office of Management and
Budget review under Executive Order 12,291, 46 Fed. Reg. 13,193
(1981), before being published as final decisions in the Federal
Register.  See SIP Processing Reform, 54 Fed. Reg. 2215 (1989).  This
OMB review can take several months.  /20/

   Furthermore, the analysis required to evaluate the merits of a
proposed SIP revision is frequently complex and resource intensive.
For example, a typical SIP revision for a single source of volatile
organic compounds in an ozone nonattainment area (the case here)
requires EPA to compare the source's proposed control technology with
control technology of which EPA is aware for other similar sources,
and determine whether the compliance schedule is as expeditious as
practicable in light of the proposed technology, alternative
technologies, and special circumstances at the source.  42 U.S.C.
7502(b)(2);  J.A. 84-85.  EPA must determine whether the proposed
revision will assure that the State will continue to make "reasonable
further progress" each year that is "sufficient * * * to provide for
attainment of the applicable national ambient air quality standard by
the date required." 42 U.S.C. 7501(1), 7502(b)(3).  This requires an
analysis of the State's reported reductions in emissions and the
effect the proposed revision will have on continued reductions, which
typically requires complex mathematical modelling.  J.A. 84-85.  /21/

   Contrary to petitioner's repeated suggestion that EPA has been
either indifferent or willfully dilatory with regard to SIP revision
review, /22/ the issue of delays in SIP revision review has been a
subject of continuing concern to the Agency.  Between 1983 and 1989,
the Agency processed more than 1600 SIP-related actions -- an average
of almost 350 per year.  SIP Processing Reform, 54 Fed. Reg. 2215.  In
1985, the Agency issued internal guidelines setting a 14-month
timetable for action on most proposed SIP revisions.  Office of Air
Quality Planning and Standards, EPA, Guidelines on Processing SIP
Revisions (And 111(d) Plans) (1985) (J.A. 103-111).  The Agency
concluded that this guideline represented a reasonable accommodation
of the public interest in (and the Agency's statutory responsibility
for) careful review of SIP revision proposals, as well as States' and
sources' interest in expeditious review.  /23/ Because the Agency
remained concerned about continuing problems of delays, however, EPA
announced in 1989 extensive changes in SIP revision review to expedite
Agency review and achieve better compliance with the Agency's own
timeliness goals.  See SIP Processing Reform, 54 Fed. Reg. 2214-2226
(1989).  After notice and comment on these changes, EPA has now issued
a final rule and revised guidelines regarding its SIP review
procedures.  The revised procedures recognize that SIP revision
proposals vary widely, and set forth a sliding scale of three months
to fourteen months for Agency review of most SIP revisions, depending
on their nature and complexity (which in some instances may
necessitate a period of longer than fourteen months).  See 55 Fed.
Reg. 5824, 5826-5828 (1990).  /24/

   It may be that, despite these Agency efforts, particular SIP
revision reviews have been subject to unwarranted delay, or will be in
the future.  The pertinent statutory measure, however, is the APA's
standard of reasonableness, not a four-month deadline that is not to
be found in the language of Section 110(a)(3)(A).  /25/

   II. EVEN IF THERE IS A FOUR-MONTH TIME LIMIT FOR REVIEW OF SIP
REVISION PROPOSALS, EPA IS NOT BARRED FROM ENFORCING THE TERMS OF AN
EXISTING SIP ONCE THAT DEADLINE HAS PASSED

   If (contrary to our view) the Section 110(a)(2) deadline does apply
to Section 110(a)(3)(A) revisions, the court of appeals nonetheless
correctly concluded that EPA's failure to meet the deadline should not
lead to a bar of enforcement actions for violations of the original
SIP until the Agency's final action on the proposed revision.  A claim
that a statute's enforcement should be barred because an agency has
missed a deadline for regulatory action must be resolved by
"examin(ing) carefully the statutory language and legislative history
to determine whether Congress did indeed desire this somewhat
incongruous result." Brock v. Pierce County, 476 U.S. 253, 258 (1986).
 Neither the statute nor the legislative history reveals any
congressional intent to bar enforcement when EPA fails to act within a
specified period;  instead, as the court of appeals concluded, less
drastic remedies to address problems of Agency delay are already
provided by statute.

   A. There Is No Support In The Language Or Legislative History Of
The Clean Air Act For An Enforcement Bar

   The language of the Clean Air Act plainly states that EPA may bring
an action for penalties or injunctive relief whenever a person is in
violation of any requirement of an "applicable implementation plan."
Section 113(b)(2);  42 U.S.C. 7413(b)(2).  /26/ Without question, the
existing SIP remains the "applicable implementation plan" even after
the State has submitted a proposed revision.  See Section 110(d);  42
U.S.C. 7410(d) ("For purposes of this chapter, an applicable
implementation plan is the imlementation plan, or most recent revision
thereof, which has been approved under (Section 110(a);  42 U.S.C.
7410(a)) or promulgated under (Section 110(c);  42 U.S.C. 7410(c)) and
which implements the requirements of this section." /27/ This Court
has emphasized the continuing applicability of an existing SIP while a
SIP revision proposal is pending:

      (A) polluter is subject to existing requirements until such time
      as he obtains a variance, and variances are not available under
      the revision authority until they have been approved by both the
      State and the (Environmental Protection) Agency.  Should either
      entity determine that granting the variance would prevent
      attainment or maintenance of national air standards, the
      polluter is presumably within his rights in seeking judicial
      review.  This litigation, however, is carried out on the
      polluter's time, not the public's, for during its pendency the
      original regulations remain in effect, and the polluter's
      failure to comply may subject him to a variety of enforcement
      procedures.

Train v. Natural Resources Defense Council, 421 U.S. 60, 92 (1975).
The courts of appeals have similarly recognized that the approved SIP
is the applicable implementation plan even after a SIP revision has
been proposed.  /28/

   In American Cyanamid, the Fifth Circuit recognized that the
proposed SIP revision does not displace the existing SIP as the
applicable plan (810 F.2d at 495), but nevertheless concluded that EPA
should be barred from enforcing the existing SIP if the Agency has not
acted on a proposed revision within four months.  That court decided
for policy reasons that an enforcement bar was necessary to penalize
EPA for "contumaciousness," to preserve the role of the States under
the Act, and to assure even-handed consideration of SIP revision
requests.  810 F.2d at 499-500.  The court made virtually no attempt
to ground its enforcement bar in a specific statutory provision, or in
specific evidence of legislative history.  And, in fact, there is no
evidence that Congress either intended or provided such an enforcement
bar.  In carving an exception out of EPA's general statutory
enforcement authority, the American Cyanamid rule is "contrary to what
the statute says." /29/

   Nothing in the statute qualifies EPA's authority to enforce the
"applicable implementation plan" in this circumstance.  Indeed,
Congress enacted an explicit enforcement bar elsewhere in the statute
/30/ -- a fact which further rebuts the notion that an implicit
enforcement bar was somehow intended if EPA misses a deadline under
Section 110(a)(3)(A).  See Hallstrom v. Tillamook County, 110 S. Ct.
304, 309 (1989) ("(W)e are not at liberty to create an exception where
Congress has declined to do so.");  Russello v. United States, 464
U.S. at 23.  Furthermore, reading an enforcement bar into Section
110(a)(3)(A) would render superfluous the explicit and limited
provision of Section 110(g) (42 U.S.C. 7410(g)), which Congress
enacted in 1977 to address the situation in which a pending SIP
revision has not been acted on by EPA and the State believes that the
waiver is necessary to prevent substantial unemployment due to plant
closings.  In that Section, Congress has granted authority to a
Governor to suspend the existing SIP after four months.  As the court
of appeals recognized (Pet. App. 18a n.6), there would have been no
reason for Congress to add that Section if the existing SIP
automatically became unenforceable at the end of that period.  /31/

   Instead of relying on specific statutory provisions or legislative
history to justify an enforcement bar, the American Cyanamid court
referred to the States' important role in "the statutory scheme" (810
F.2d at 500) and to the congressional finding that "'the prevention
and control of air pollution * * * is the primary responsibility of
States and local governments'" (810 F.2d at 500-501, quoting 42 U.S.C.
7401(a)(3)).  Petitioner similarly relies on "the statute's carefully
crafted balance of state and federal authority." Br. 22.  This general
emphasis on the role of the States, however, does not supply a proper
statutory anchor for the enforcement bar.  Moreover, while the States
retain important responsibilities under the Act, the States' "primary
responsibility" is to be carried out subject to significant oversight
by the federal government.  Section 110(a), in particular, gives final
authority over SIPs and SIP revisions to EPA.  See Train v. Natural
Resources Defense Council, 421 U.S. at 92.  Since Congress made EPA
approval a condition precedent to the effectiveness of a SIP revision,
there will always be a period during which a State's choice of
emission controls will have to await approval by EPA.  The result of
the American Cyanamid rule is that a proposed SIP revision becomes, in
effect, the applicable standard after four months in the absence of
agency disapproval.  But there is simply no support in the statute for
such a conclusion.  /32/

   B. Less Drastic Remedies Than An Enforcement Bar Are Available To
Address Agency Delay

   In the absence of a specific statutory provision or legislative
history suggesting that Congress intended an enforcement bar,
petitioner maintains that an enforcement bar should be imposed for
various policy reasons.  Petitioner urges that such a bar is needed to
protect the States' role under the Act (Br. 20-24, 31-34), to protect
industry from uncertainty (Br. 34-37), and to discipline the Agency
(Br. 37-40).  These policy arguments are more properly presented to
Congress than to the courts.  They are, in any event, unpersuasive --
especially because explicit statutory provisions already provide less
drastic remedies than an enforcement bar, remedies that, unlike
petitioner's blunderbuss approach, also preserve the basic statutory
protection of the public health.

   1. Petitioner's argument about the propriety of an enforcement bar
as a remedy (Br. 24-30, 40-45) begins with a fundamental
misconception.  Petitioner fails to appreciate the exceptional nature
of the "remedy" it seeks, and of the rule imposed by the American
Cyanamid court.  In the absence of explicit statutory language
divesting an agency of the power to enforce an Act of Congress, courts
should be wary of assuming that Congress intended such a result.  The
principles that govern this inquiry were set out in Brock v. Pierce
County, 476 U.S. 253 (1986).  That litigation arose out of an attempt
by the Secretary of Labor to recoup misspent job training funds after
a government audit of the County's expenditures;  the County argued
that recovery was barred because the Secretary had failed to complete
his investigation and issue a final determination regarding the matter
within 120 days, as required by the pertinent statute.  Id. at 257.
Citing "the 'great principle of public policy, applicable to all
governments alike, which forbids that the public interests should be
prejudiced by the negligence of the officers or agents to whose care
they are confided'" (476 U.S. at 260), this Court emphasized the
strong presumption against concluding that Congress intended to bar an
agency from acting if it missed a deadline for regulatory action
(ibid.):

      We would be most reluctant to conclude that every failure of an
      agency to observe a procedural requirement voids subsequent
      agency action, especially when important public rights are at
      stake.  When, as here, there are less drastic remedies available
      for failure to meet a statutory deadline, courts should not
      assume that Congress intended the agency to lose its power to
      act.

The Court explained that a "less drastic remedy" for failure to meet a
mandatory deadline would be a suit to "'compel agency action
unlawfully withheld or unreasonably delayed,'" under the
Administrative Procedure Act, 5 U.S.C. 706(1).  476 U.S. at 260 n.7.

   The reasoning of Brock is fully applicable to this case.  /33/
Here, as in Brock, "(t)here is simply no indication in the statute or
its legislative history that Congress intended to remove the
(agency's) enforcement powers" if it fails to act in a timely fashion.
 476 U.S. at 266.  /34/ As the court of appeals concluded, and as we
shall show, there are less drastic remedies (including but not limited
to suits under 5 U.S.C. 706(1)) for addressing untimely action on SIP
revisions.  See also Alcan Foil, 889 F.2d at 1520-1521 ("Clearly
remedies less drastic than dismissal are available for EPA's failure
to act within four months.").

   Petitioner contends (Br. 26) that the reasoning of Brock is not
applicable because EPA can lift the enforcement bar by taking final
actions on proposed SIP revisions.  This asserted distinction is
inadequate.  During the enforcement bar, the Agency would be stripped
of its explicit statutory power to enforce applicable clean air
requirements;  the need for judicial reluctance to conclude that an
agency's failure "to observe a procedural requirement voids subsequent
agency action, especially where important public rights are at stake"
(Brock, 476 U.S. at 260) is therefore directly relevant.  That EPA
could ultimately act on a proposed revision (and thus regain its
enforcement authority) does not mitigate the fact that it would have
been deprived of "its power to act" (ibid.) with respect to Clean Air
Act violations in the interim -- and could be similarly deprived again
by submission of another proposed revision relating to the same
source.  Indeed, Congress has specifically emphasized the importance
of imposing monetary penalties to remove the economic benefits of
noncompliance and to "place polluters on the same economic footing as
those who had limited their emissions through increased anti-pollution
expenditures." Duquesne Light, 698 F.2d at 463, citing H.R. Rep. No.
294, 95th Cong., 1st Sess. 72-79 (1977).  If EPA were barred from
collecting penalties for some period of non-compliance with an
applicable SIP, this congressional purpose would be irretrievably
thwarted, notwithstanding the possibility of prospective relief once
EPA is able to take final action on the SIP revision.  Contrary to
petitioner's advocacy of the enforcement bar, Brock counsels that, in
the absence of explicit congressional intent, such a frustration of
the basic statutory purpose -- and such an exceptional result from a
failure to observe a deadline for regulatory action -- should not be
countenanced.  /35/

   2. Proceeding from this misconception about the nature of the rule
it advocates, petitioner advances policy arguments to support the
enforcement bar.  Petitioner's first policy argument (Br. 20-24) is
that an enforcement bar is necessary to preserve the partnership
between the state and federal governments that the Clean Air Act
creates.  As an initial matter, it is incongruous for petitioner to be
asserting that interest in this case because the Commonwealth of
Massachusetts has stated unequivocally in this litigation that, in its
view, an American Cyanamid enforcement bar should not be imposed.  See
Massachusetts C.A. Amicus Br. 10-15;  Pet. App. 12a.  Petitioner thus
seeks to assert the State's interest in a case in which the State
itself has come to exactly the opposite conclusion.

   In any event, an enforcement bar would be unlikely to further the
asserted goal of a co-operative relationship between the States and
the federal government.  Instead, it would place a premium on hurried
and inflexible decision-making.  In this case, for instance, an
enforcement bar would have argued strongly in favor of rejecting the
Commonwealth's request for additional time for negotiations.  Cf.
Georgia v. United States, 411 U.S. 526, 540-541 (1973) (requiring the
Attorney General to act on state reapportionment plans within the 60
day deadline provided in the Voting Rights Act, rather than allowing
him to suspend running of period while States submitted additional
pertinent information, "would only add acrimony to the administration"
of the Act).

   To the extent that States are legitimately aggrieved by EPA delay
in SIP revision review, moreover, adequate alternative remedies are
available.  The ruling below contemplates the ability to compel EPA
action, if it is unreasonably delayed.  Brock suggests (476 U.S. at
260 & n.7) that this is precisely the sort of "less drastic remed(y)"
that renders an enforcement bar unnecessary.  See also Council of
Commuter Organizations v. Thomas, 799 F.2d at 888 (remedy for undue
delay on SIP revisions is suit to compel action under Section 304(a));
 United States v. Boccanfuso, 882 F.2d 666, 671-672 (2d Cir. 1989)
(Corps of Engineers cannot be estopped from enforcing Clean Water Act
on account of its failure to follow deadline contained in its
regulations;  suit under APA provides "less drastic remedy").
Furthermore, this remedy has the advantage of being available in all
SIP revision cases, not just those few that may implicate enforcement
actions.  /36/

   Under the approach taken by the court of appeals, moreover, there
is a substantial incentive for timely agency action because, pursuant
to Section 113(b) (42 U.S.C. 7413(b)), the penalties EPA may obtain
can be reduced if the source can show that it complied with a proposed
SIP revision that was subject to an unreasonable and prejudicial
delay.  Pet. App. 15a.  Like an action to compel agency action -- and
unlike an enforcement bar -- this remedy is explicitly provided by
statute.  It is also more appropriately tailored to the asserted
problem of agency delay than an automatic enforcement bar, which would
take effect no matter how reasonable the delay and whether or not the
delay caused any prejudice.  Although, as petitioner notes (Br. 41),
this remedy will require judicial inquiry in enforcement cases, it is
the kind of judicial inquiry in enforcement actions that the statute
contemplates.  See 42 U.S.C. 7413(b).  /37/

   States may also use non-judicial remedies to protect their interest
in timely action on SIP-revision proposals.  The States can and have
expressed their concerns directly to EPA.  The agency, in response,
has implemented significant reforms designed to speed up the SIP
review process.  Indeed, EPA's recent SIP Process Reform is a product
of a task force made up of State and EPA officials.  See 54 Fed. Reg.
2215-2216 (1989).  Carrying out the recommendations of the task force,
EPA has implemented significant changes in its SIP processing
procedures, including:  review of proposed SIP revisions for
completeness against specific criteria, and a requirement of prompt
modification of incomplete submittals;  delegation of decisional
authority to Regional Administrators for SIP actions which are not
nationally significant;  identification of minor revisions which do
not require notice and comment;  use of expedited notice and comment
procedures for other revision proposals;  and provision for
"grandfathering" of SIP revisions prepared in good faith by a State
but which may become deficient because of a change in EPA policy
subsequent to state submission.  Id. at 2217-2220.  These changes,
brought about by a cooperative State-federal effort, should go far
toward meeting any state concerns about excessive delay.

   At the same time, the interest of all States -- and of the general
public -- in clean air would be undermined by an enforcement bar.  As
Massachusetts itself put it in arguing against an enforcement bar in
the court of appeals, "(s)ince the existing SIP is not suspended in
any sense by the pendency of a proposed revision and remains the valid
standard * * * EPA must be able to enforce it." Massachusetts C.A.
Amicus Br. 11.  See also Pet. App. 16a ("We find it significant that
not even the Commonwealth argues for an enforcement bar, thus
recognizing that its interests occasionally must yield to the
overriding goal of improving our nation's air.").  Furthermore, an
enforcement bar would provide an incentive for quick action only in
SIP revision review cases where enforcement is implicated, i.e., cases
where the proposed SIP revision loosens restrictions or deadlines.  It
could thus have the perverse result of encouraging the Agency to
concentrate scarce resources on SIP revisions that relax air quality
requirements, drawing resources away from the many SIP revisions that
tighten requirements or deadlines.  /38/

   3. Petitioner's second policy argument (Br. 34-37) is that an
enforcement bar is necessary to avoid "seriously negative impacts on
regulated industries." Id. at 34.  This contention is unfounded.

   The thrust of petitioner's objection is that industries are subject
to "conflicting federal and state regulatory requirements." Br. 34.
This asserted "conflict," however, stems from the Act's requirement
that EPA approve a state SIP revision before it can become effective.
Thus, as petitioner recognizes (Br. 34 n.43), there will always be a
period during which a State-proposed revision and a federally-approved
SIP will differ.  If federal and state requirements are actually in
conflict, however, by virtue of the federal requirement being more
stringent than the state requirement, then the federal requirement
clearly controls under basic preemption principles.  See, e.g.,
Northwest Central Pipeline Corp. v. State Corporation Comm'n, 109 S.
Ct. 1262, 1273 (1989);  Florida Lime & Avocado Growers, Inc. v. Paul,
373 U.S. 132, 142-143 (1963).  /39/ Moreover, the Clean Air Act itself
makes clear that the approved SIP is the "applicable implementation
plan" until a revision is approved by EPA (Section 110(d);  42 U.S.C.
7410(d)).  /40/

   Even if there were a problem with inconsistent obligations,
however, an enforcement bar is not well-tailored to address it.  For
one thing, it would operate even where, as here, there is no threat of
inconsistent state enforcement.  For another, the "certainty" it
promises would be illusory because the source would be subject to the
possibility of a citizen suit to enforce the existing SIP even if
EPA's hands were tied.  /41/ Instead of producing certainty, an
enforcement bar would lead to a situation where enforcement may or may
not take place depending on whether there exists a citizen group
willing and able to mount the challenge.  Cf. Amicus Br. of National
Governors Ass'n, et al. 18 n.17 ("It would be anomalous to create a
situation in which States could enforce, private citizens could
enforce, but the expert federal agency with explicit statutory
authority could not.").  /42/

   Petitioner's additional suggestion (Br. 36) that an enforcement bar
is needed to protect companies which "undertake improved compliance
strategies" is also unpersuasive.  EPA can bring an action only when
the source fails to comply with the existing SIP.  If the source is
truly undertaking "improved" compliance, this problem should not
arise.  To the extent that it does arise -- because, as petitioner
claims, non-compliance with the existing SIP is justified by long-term
investments in better compliance technologies and by interim
compliance with the proposed SIP revision -- the possible reduction of
penalties in Section 113(b) is once again an adequate remedy.  Such
claims go to the "equities of (the) case" (Pet. App. 17a) and the
"seriousness of the violation" (Section 113(b);  42 U.S.C. 7413(b))
that are part of the district court's consideration of penalties.
/43/

   4. Petitioner's third policy argument (Br. 37-40) is that an
enforcement bar is needed to preserve the integrity of EPA's SIP
review process.  However, the speculative possibility that an
enforcement action could undermine even-handed administration and
influence the outcome of the final decision on a SIP revision stems
not from agency delay but from Congress's decision to assign both
enforcement and SIP review responsibilities to the same agency (Pet.
App. 16a-17a).  Congress evidently concluded that the two functions
could be carried out fairly by the same agency.  Moreover, Congress
provided an adequate remedy for anyone aggrieved by an allegedly
biased decision by providing for review of final agency decisions in
the courts of appeals.  Section 307(b)(1);  42 U.S.C. 7607(b)(1).  See
also Bethlehem Steel Corp. v. EPA, 638 F.2d 994, 1010 (7th Cir. 1980)
(appropriate remedy where enforcement considerations may have
improperly affected EPA's decision on delayed compliance order is
vacation and remand to agency under Section 307(b)).  Indeed,
petitioner has filed suit under Section 307(b) to challenge the
propriety of EPA's denial of the SIP revision in this case (supra at
n.8).  /44/ This Court should reject the invitation to create an
additional remedy to address this asserted problem, especially one as
broad as a complete preclusion of enforcement whenever EPA has taken
more than four months to act on a SIP revision.  See Middlesex County
Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1, 14-15
(1981)) ("it is an elemental canon of statutory construction that
where a statute expressly provides a particular remedy or remedies, a
court must be chary of reading others into it") (quoting Transamerica
Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19 (1979)).  See also
Touche Ross & Co. v. Redington, 442 U.S. 560, 574 (1979) (the Court is
"extremely reluctant to imply a cause of action * * * that is
significantly broader than the remedy that Congress chose to
provide").

   5. The American Cyanamid court explicitly rested its enforcement
bar, in part, on a closely related policy argument -- an asserted need
to punish the agency for delay.  See American Cyanamid, 810 F.2d at
499 n.9 (rejecting Duquesne Light approach because, under it, "EPA * *
* pays no price for its contumaciousness");  Pet. Br. 21.  That
rationale fails for several reasons.

   As an initial matter, careful EPA evaluation of proposed revisions,
which must be issued for public comment and submitted to OMB review,
will generally take substantially longer than four months.  EPA has
itself established timetables for agency action which are a far more
realistic reflection of the underlying legal and administrative
complexities presented by SIP revisions that may involve many federal,
state, and private parties and that must also clear the hurdles posed
by prevailing administrative law jurisprudence.  In these
circumstances, failure to observe a four-month timetable hardly merits
automatic and severe judicially-invented punishment.

   Moreover, as the court of appeals in this case noted, "(i)f the EPA
cannot enforce existing standards, it is the public and not the EPA
that is hurt." Pet. App. 14a.  See also Alcan Foil, 889 F.2d at 1520
("The public should not suffer because of EPA's failures.");  D.
Currie, supra, at 114 (result of American Cyanamid is that "the public
is punished for the Agency's inaction").  Under the American Cyanamid
rule, EPA is absolutely banned from enforcement actions after the
four-month period and during the pendency of a SIP revision proposal.
The Agency cannot enforce the approved SIP, even though it remains the
"applicable implementation plan" (Section 110(d);  42 U.S.C. 7410(d)),
and it cannot even enforce the proposed SIP because it is not yet the
"applicable implementation plan." It does no disservice to the States
to recognize that they are sometimes put under enormous pressure to
accommodate major sources of employment.  Congress recognized this
fact of life when it provided for federal review of SIPs and SIP
revisions.  /45/ An enforcement bar could encourage non-complying
sources to propose, and States to submit, last-minute SIP revision
proposals for the purpose of staying EPA enforcement actions and
postponing compliance with SIP provisions which Congress required to
be achieved within the deadlines set forth in the Act.  /46/ If
existing SIPs cannot be enforced by EPA, noncomplying sources in
States that propose revisions will gain unfair advantage over those in
other States, and the public will suffer from further delays in
attainment of national air quality standards, contrary to Congress's
clear intent.  /47/ In light of the fact that EPA is rarely able to
complete final action on SIP revisions within four months, adoption of
the American Cyanamid rule would seriously undermine the Agency's
ability to enforce the Act as Congress intended.

   The facts of this case illustrate the negative results of an
enforcement bar.  Petitioner had more than ample time (five years) to
bring its plant into compliance with the emission limits of the 1980
SIP either by installing control devices on its lacquer coating lines
or by converting to the basecoat/clearcoat process without undue
delay.  Instead of making the investment necessary to achieve this
result, petitioner waited until shortly before the deadline to propose
a solution that by that time required a one and one-half year
extension of the SIP time limits.  Allowing petitioner to follow this
course of conduct without penalty would ignore the damage to the
public interest caused by the one and one-half-year delay in reaching
the stricter emission limits, and would give petitioner an economic
advantage over companies that made the investments necessary to meet
applicable limits in a timely fashion.  Worse, adopting an enforcement
bar could encourage other sources to propose last-minute SIP
revisions, secure in the knowledge that EPA would not be able to
enforce the deadlines of the existing SIP for a significant length of
time.  /48/

   Most fundamentally, the punishment rationale -- and the American
Cyanamid rule generally -- reflects a serious misconception of the
court's role.  Congress provided for enforcement of the "applicable"
SIP (42 U.S.C. 7413(b)(2)), and made no exception for the situation
when a proposed revision has been pending for more than four months.
It is not the province of the judiciary to carve out such an exception
based on notions of "what accords with 'common sense and the public
weal.'" TVA v. Hill, 437 U.S. 153, 195 (1978).  Cf. National Crushed
Stone, 449 U.S. at 83 ("'The question * * * is not what a court thinks
is generally appropriate to the regulatory process;  it is what
Congress intended * * *'") (quoting from E.I. du Pont de Nemours & Co.
v. Train, 430 U.S. 112, 138 (1977)).

   Thus, neither the asserted concern for the role of the States, nor
the claim of unfairness to industry, nor the stated need to discipline
and punish the Agency justifies an enforcement bar.  To the extent
that such concerns are substantial, less drastic remedies are readily
available and are already provided by statute.  /49/ Accordingly, the
court of appeals correctly reinstated the enforcement action against
petitioner and remanded for consideration of appropriate penalties, if
any.

   We agree with the court of appeals (Pet. App. 15a, 17a) that the
district court in setting penalties may consider the equities of the
case along with the reasonableness of the period taken by EPA for
processing the SIP revision and, if unreasonable, any resulting
prejudice to petitioner.  The reasonableness of any Agency delay will
depend on a number of factors, including whether the SIP revision
presented novel or complex issues, and whether the delay was caused by
EPA or by other parties.  /50/ The district court will then have a
full opportunity to take account of the various claims of unfairness
which petitioner here asserts in favor of an enforcement bar.

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   RICHARD B. STEWART

      Assistant Attorney General

   LAWRENCE G. WALLACE

      Deputy Solicitor General

   CLIFFORD M. SLOAN

      Assistant to the Solicitor General

   MARTIN W. MATZEN

   DAVID C. SHILTON

      Attorneys

   E. DONALD ELLIOT

      General Counsel

   DAVID P. NOVELLO

   TIMOTHY L. WILLIAMSON

      Attorneys Environmental Protection Agency

   FEBRUARY 1990

   /1/ "Ambient air" is "the statute's term for the outdoor air used
by the general public." Train v. Natural Resources Defense Council,
421 U.S. at 65.

   /2/ Before 1974, this provision had been Section 110(a)(3) of the
Clean Air Act, rather than Section 110(a)(3)(A).  See Energy Supply
and Environmental Coordination Act of 1974, Pub. L. No. 93-319,
Section 4(a), 88 Stat. 256.

   /3/ Petitioner's statement that "(f)or ozone the deadline is
December 31, 1987" (Br. 4 n.1) is thus, at best, an incomplete
statement of the pertinent statutory provision.

   /4/ A "major stationary source" is "any stationary facility or
source of air pollutants which directly emits, or has the potential to
emit, one hundred tons per year or more of any air pollutant." 42
U.S.C. 7602(j).

   /5/ The D.C. Circuit has described the effects of ozone:

         Ozone is the primary cause of the ill effects associated with
      smog, of which it usually comprises 65-100%.  At certain
      concentration levels, ozone irritates the respiratory system and
      causes coughing, wheezing, chest tightness, and headaches.  Due
      to its irritating nature, ozone can aggravate asthma,
      bronchitis, and emphysema.  Some studies indicate that chronic
      exposure to fairly low levels of ozone may reduce resistance to
      infection and alter blood chemistry or chromosome structure.
      Ozone can destroy vegetation, reduce crop yield, and damage
      exposed materials by causing cracking, fading and weathering.

American Petroleum Institute v. Costle, 665 F.2d 1176, 1181 (D.C. Cir.
1981), cert. denied, 455 U.S. 1034 (1982).  See also Illinois State
Chamber of Commerce v. EPA, 775 F.2d 1141, 1143 (7th Cir. 1985)
("Ozone is a significant component of the health-endangering smog that
is one product of modern industry and transportation").

   /6/ EPA also emphasized that the revisions would "need to be
evaluated in light of their impact on the overall plan and the
individual elements, including emission reductions necessary to
demonstrate reasonable further progress toward attainment of
standards." J.A. 31-32.

   /7/ EPA pointed out that the SIP limit for topcoating was 2.8
pounds of VOC per gallon of coating (excluding water) and that
petitioner had used topcoatings with an average content of 5.02 pounds
of VOC per gallon of coating (excluding water);  EPA also pointed out
that the SIP limit for final repair coatings was 4.8 pounds of VOC per
gallon of coating (excluding water), and that petitioner had used
final repair coatings with an average of 6.18 pounds of VOC per gallon
of coating (excluding water).  J.A. 79.

   /8/ On November 11, 1988, petitioner filed a petition for review of
EPA's denial of the proposed SIP revision in the court of appeals.
General Motors v. Reilly, No. 88-2123 (1st Cir.).  That action has
been stayed pending EPA action on petitioner's request for
reconsideration by the agency, and pending decision in this case.

   /9/ The Sixth Circuit has now agreed with the First Circuit's
analysis in this case, and has also rejected the American Cyanamid
enforcement bar.  See United States v. Alcan Foil Products, 889 F.2d
1513 (6th Cir. 1989), petition for cert. pending, No. 89-1104.  Both
this case and Alcan Foil arose in the context of Section 113
enforcement proceedings;  Duquesne Light and American Cyanamid arose
in the context of Section 120 administrative assessments.  Neither the
First Circuit nor the Sixth Circuit rested its decision on that
distinction.  See Pet. App. 16a & n.4;  889 F.2d at 1518.

   /10/ See Pet. App. 12a (citing American Cyanamid, 810 F.2d at 495;
Council of Commuter Organizations v. Thomas, 799 F.2d 879, 888 (2d
Cir. 1986);  Council of Commuter Organizations v. Gorsuch, 683 F.2d
648, 651 n.1 (2d Cir. 1982);  and Duquesne Light Co. v. EPA, 698 F.2d
456, 471 (D.C. Cir. 1983)).  In United States v. Alcan Foil Products,
supra, the Sixth Circuit also concluded that a four-month limit
applies to SIP revisions.  889 F.2d at 1517-1518.

   /11/ Contrary to petitioner's contention (Br. 12 n.13), the
question of the applicability of a four-month deadline to review of
SIP revisions is properly before this Court.  The non-applicability of
such a deadline is an alternative ground for affirming the judgment of
the court of appeals, which reversed the dismissal of the enforcement
action and remanded for consideration of penalties.  The "prevailing
party" is "of course free to defend its judgment on any ground
properly raised below whether or not that ground was relied upon,
rejected, or even considered by the District Court or the Court of
Appeals." Washington v. Yakima Indian Nation, 439 U.S. 463, 475 n.20
(1979).  See also Thigpen v. Roberts, 468 U.S. 27, 30 (1984);  Blum v.
Bacon, 457 U.S. 132, 137 n.5 (1982);  Dayton Board of Education v.
Brinkman, 433 U.S. 406, 419 (1977).  In this case, the issue has been
not only properly raised below, but explicitly addressed by both the
district court and the court of appeals.  See J.A. 122-125;  Pet. App.
9a-12a.

   /12/ This original schedule included (1) proposed NAAQS "within 30
days after December 31, 1970" (Section 109(a)(1)(A);  42 U.S.C.
7409(a)(1)(A));  (2) final NAAQS "no later than 90 days after initial
publication of such proposed standards" (Section 109(a)(1)(B);  42
U.S.C. 7409(a)(1)(B));  (3) original SIP submissions "within nine
months after the promulgation" of NAAQS (Section 110(a)(1);  42 U.S.C.
7410(a)(1));  (4) EPA action on SIP submissions within four months
(Section 110(a)(2);  42 U.S.C. 7410(a)(2));  and (5) attainment of the
primary NAAQS "as expeditiously as practicable but * * * in no case
later than three years" from the date of approval of the original SIP
(Section 110(a)(2)(A);  42 U.S.C. 7410(a)(2)(A)).

   /13/ The "it" in Section 110(a)(3)(A), which must "meet() the
requirements of paragraph (2)," plainly refers to the SIP revision,
not to the Administrator.

   /14/ Significantly, the very next provision of the Act, relating to
certain SIP revisions for fuel burning stationary sources, contains
just such language.  See Section 110(a)(3)(B);  42 U.S.C.
7410(a)(3)(B) ("The Administrator shall approve or disapprove any
revision no later than three months after its submission.").  Clearly,
Congress knew how to impose time limits on EPA processing of SIP
revisions when it wanted to do so.  The three-month limit in Section
110(a)(3)(B) is practicable because a proposed SIP revision under that
Section can be submitted only after the Administrator has determined
that the SIP can be revised "without interfering with the attainment
and maintenance of any national ambient air quality standard," and has
so notified the State.  Hence, the difficult determination of whether
NAAQS will be preserved will already have been made.  Indeed, Section
110(a)(3)(B) requires the Administrator to make that determination --
whether state plans are capable of revision without interfering with
the attainment of NAAQS -- not within a specified three-month period,
but merely "(a)s soon as practicable."

   Other examples of explicit deadlines in the Clean Air Act are the
deadlines for imposition of a federal implementation plan (Section
110(c)(1);  42 U.S.C. 7410(c)(1)) and review of a State-issued delayed
compliance order (Section 113(d);  42 U.S.C. 7413(d)).

   /15/ The legislative history reflects this sense of urgency.  See,
e.g., Congressional Research Service, 1 A Legislative History of the
Clean Air Amendments of 1970, at 124-125 (Comm. Print 1974) (remarks
of Senator Muskie on consideration of the conference report) ("Let me
now review briefly where we were in September * * * .  Unless we
recognized the crisis and generated a sense of urgency, national lead
times to find and apply controls (and) measures could melt away
without any chance for a rational solution to the air pollution
problem.  * * * (N)ational air quality goals * * * had to be achieved
within specific time frames * * * .").  See also Union Electric Co. v.
EPA, 427 U.S. 246, 256 (1976) ("(T)he 1970 Amendments to the Clean Air
Act were a drastic remedy to what was perceived as a serious and
otherwise uncheckable problem of air pollution.").

   /16/ See S. Rep. No. 1196, 91st Cong., 2d Sess. 14 (1970) ("In
order to insure achievement of air quality necessary to protect the
health of persons within the period specified in the bill, time
constraints would be placed on the Secretary's review and approval
authority. * * * The bill would provide that the Secretary must
approve or reject any implementation plan submitted by a State within
four months of the date required for its submission.").  In that
version of the legislation, the Secretary of Health, Education, and
Welfare, who had previously been responsible for federal air pollution
control efforts, was given responsibility for reviewing SIP
submissions.  See id. at 52.

   /17/ See CRS, 2 A Legislative History of the Clean Air Act
Amendments of 1970, at 1036-1038 (Comm. Print 1974) (testimony of
Charles C. Johnson, Administrator, Environmental Health Services,
Department of Health, Education, and Welfare).  The 1970 Amendments
specifically provided that any pre-enactment state implementation plan
could be approved and remain in effect if consistent with the
Amendments.  See 84 Stat. 1713;  42 U.S.C. 7410 note.

   /18/ See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation,
Inc., 484 U.S. 49, 63 n.4 (1987) ("Respondents point to provisions in
the 1987 Act and statements in its legislative history * * * .  The
conclusions of the 99th Congress, however, are hardly probative of the
intent of the 92d Congress.");  Rainwater v. United States, 356 U.S.
590, 593 (1958) ("At most, the 1918 amendment is merely an expression
of how the 1918 Congress interpreted a statute passed by another
Congress more than a half century before. * * * (S)uch interpretation
has very little, if any, significance").

   /19/ See H.R. 6161, 95th Cong., 1st Sess. Section 115 (1977)
(reprinted in CRS, 4 A Legislative History of the Clean Air Act
Amendments of 1977, at 2324 (Comm. Print 1978)).

   /20/ See Letter from Joseph A. Cannon, EPA Associate Administrator,
Policy and Resource Management to Hon. Sam. B. Hall, Chairman, House
Subcommittee on Administrative Law and Governmental Relations (May 26,
1983), reprinted in Regulatory Reform Act:  Hearings Before the
Subcomm. on Administration Law and Governmental Relations of the House
Comm. on the Judiciary, 98th Cong., 1st Sess. 1561-1562 (1983).

   /21/ The requirements that SIPs in nonattainment areas provide for
the use of "reasonably available control technology" (RACT) to reduce
emissions and that they provide for "reasonable further progress" in
controlling emissions during the interim before compliance (42 U.S.C.
7502(b)(3)) were added by the 1977 Amendments;  they require EPA to
make a more detailed inquiry into a State's choice of emission
limitations.  See, e.g., Michigan v. Thomas, 805 F.2d 176, 184-185
(6th Cir. 1986).

   /22/ See, e.g., Br. 11, 12, 14, 18, 22.

   /23/ Cf. United Steelworkers of America v. Rubber Manufacturers
Ass'n, 783 F.2d 1117, 1120 (D.C. Cir. 1986) (accepting Occupational
Safety and Health Administration's proposed 14-month schedule for
completing rulemaking because agency "obviously cannot know at present
how many comments it will receive or the nature of those comments,"
and because, given the need for careful consideration of complex
issues, "judicial imposition of an overly hasty timetable at this
stage would ill serve the public interest").

   /24/ In its condemnation of EPA, petitioner misstates a finding in
an internal Agency audit.  According to petitioner, the Agency audit
found that the average time for SIP revision review is 30 months.  Br.
29.  In fact, however, the audit found that 30 months is the average
time only for review of SIP revisions in which a disapproval is
contemplated;  those are, of course, the revisions that require the
most time and are the most contested.  See EPA, Report of Audit,
Review of EPA's Process for Approving/Disapproving State
Implementation Plans and Revisions, E1K*8-11-0045-9100210 (March 1989)
20-21 (analyzing length of time for "pending disapprovals").

   /25/ Amici Golden West Refining Co., et al., contend (Br. 7 n.4)
that "EPA acknowledged the four month limit applied to SIP revisions"
in regulations implementing Section 120.  What Golden West mistakenly
refers to as "proposed regulations" was actually a final rule
modifying EPA's Section 120 regulations in response to the D.C.
Circuit's Duquesne Light decision.  50 Fed. Reg. 36,732 (1985).  With
respect to the four-month deadline, EPA merely repeated the holding of
Duquesne Light and cited the decision.  50 Fed. Reg. 36,733 (1985).
This recognition of a court decision obviously does not amount to an
"acknowledge(ment)" or a concession.  See EPA v. National Crushed
Stone Ass'n, 449 U.S. 64, 83 n.25 (1980).  See also SIP Processing
Reform, 54 Fed. Reg. 2215 n.1 (1989) (reiterating Agency view that
four month deadline "does not apply to SIP revisions").

   /26/ EPA may bring the action 30 days after notice of a violation.
If the EPA has, pursuant to 42 U.S.C. 7413(a)(2), assumed enforcement
of a SIP from the State because of state enforcement failures, the
30-day period is not necessary.  42 U.S.C. 7413(b)(2).

   /27/ The reference to Section 110(c) is to situations in which,
because of state failure to comply with SIP submission requirements,
the Administrator promulgates a SIP on the State's behalf.  See 42
U.S.C. 7410(c).

   /28/ See Alcan Foil, 889 F.2d at 1519 ("(A) proposed revision is
exactly what its name implies -- a proposal, and nothing more.");
Duquesne Light, 698 F.2d at 471 (same);  United States v.
Wheeling-Pittsburgh Steel Corp., 818 F.2d 1077, 1084 (3d Cir. 1987)
(company is obliged to comply with existing compliance deadlines
during pendency of SIP revision);  United States v. Ford Motor Co.,
814 F.2d 1099, 1103 (6th Cir.) ("the original emission limit remains
fully enforceable until a revision or variance is approved by both the
State and EPA"), cert. denied, 484 U.S.C. 822 (1987);  Metropolitan
Washington Coalition for Clean Air v. District of Columbia, 511 F.2d
809, 812 (D.C. Cir. 1975) (proposed SIP revision has no legal effect
until approved by EPA);  Natural Resources Defense Council v. EPA, 478
F.2d 875, 886 (1st Cir. 1972) (same).

   /29/ D. Currie, Air Pollution:  Federal Law and Analysis Section
8.07 n.14 (Supp. 1989).  See also 1 W. Rodgers, Environmental Law:
Air and Water Section 3.39 (Supp. 1988) (enforcement bar is a
"limitation invented by American Cyanamid").

   /30/ Section 113(d)(10);  42 U.S.C. 7413(d)(10), contains an
express enforcement bar when Delayed Compliance Orders are in effect:
it provides that, during the period of the Order and where the source
is in compliance with its terms, "no Federal enforcement action
pursuant to this section and no action under section 7604 of this
title (providing for citizen suits) shall be pursued against such
owner or operator based upon noncompliance during the period the order
is in effect with the requirements for the source covered by such
order."

   Section 113(d)(2);  42 U.S.C. 7413(d)(2), moreover, provides that a
Delayed Compliance Order issued by a State to a "source other than a
major stationary source" is effective until the Administrator
disapproves it.  The same Section provides that orders issued to major
stationary sources are not effective until approved by EPA.  This
indicates that Congress is well aware of the difference between agency
approvals that are a condition precedent to effectiveness of a
State-issued order and those that are a condition subsequent.
Petitioner here is seeking, in essence, to change a statutory
condition precedent to a condition subsequent.  The fact that the
Fifth Circuit has now suggested that its American Cyanamid rule
applies if EPA has not acted on a Delayed Compliance Order to a major
stationary source within a specified period (General Motors Corp. v.
EPA, 871 F.2d 495, 505 (5th Cir. 1989)) does not vitiate this explicit
statutory distinction.

   /31/ In response to this point, petitioner maintains (Br. 27 n.34)
that a Governor may issue a four-month suspension order as soon as the
request is submitted, that the suspension would run concurrently with
the four-month period for EPA review, and that the American Cyanamid
bar would run after the expiration of that period.  Section 110(g),
however, does not contain a provision specifying that the Governor's
suspension order takes effect immediately;  Section 110(f), in
contrast, which concerns energy emergencies and which was passed at
the same time as Section 110(g), contains precisely such language.
See 42 U.S.C. 7410(f)(1) (after President's determination of
emergency, Governor's suspension order "may take effect immediately").
 The Conference Report, moreover, firmly rebuts petitioner's strained
reading of Section 110(g) by stating an intent to "limit the
Governor's economic emergency suspension authority to a case in which
* * * the Administrator has failed to approve or disapprove such plan
revision within the required 4-month period." H.R. Conf. Rep. No. 564,
95th Cong., 1st Sess. 125 (1977).  Clearly, the Administrator cannot
be said to have "failed" until the four-month period is over;  thus a
Governor's ability to order a suspension comes into effect only after
the four-month period of EPA review, and would be entirely unnecessary
if Congress intended a general American Cyanamid bar if EPA does not
act in four months.

   This analysis, of course, proceeds from the premise that a general
four-month deadline is intended by Section 110(a)(3)(A).  As we have
explained (pp. 14-24, supra), we believe that four-month review of SIP
revisions is required only for such emergency suspensions.

   /32/ Amici National Governors' Association, et al. recognize that
"(a) complete bar to enforcement proceedings is contrary to Congress's
carefully crafted scheme." Br. 18 n.17.  The Association et al.
nevertheless argue (Br. 18-19) that a district court should bar
enforcement unless EPA establishes to the court's satisfaction a basis
for disapproving the pending SIP revision.  While that proposal is
less draconian than the American Cyanamid bar, it suffers equally from
the disability of having no support in the statute (which
unambiguously provides that an existing SIP remains the governing
legal standard pending EPA approval of a proposed revision, see pp.
25-26, supra).  In addition, it conflicts with Congress's decision to
vest exclusive review of EPA's decisions on SIP revisions in the
courts of appeals.  Section 307(b)(1);  42 U.S.C. 7607(b)(1);  see
Harrison v. PPG Industries, Inc., 446 U.S. 578 (1980).  (Amici's
reference to Section 307(b)(2), 42 U.S.C. 7607(b)(2), which prohibits
review in civil or criminal enforcement proceedings of actions on
which court of appeals review could have been obtained under Section
307(b)(1), is unavailing because that prohibition does not confer
jurisdiction on the district courts to review SIP revisions.) In any
event, Amici's concern that EPA should not enforce the existing SIP if
the proposed SIP revision meets the statutory criteria for approval is
already addressed by agency enforcement policy.  Under that policy,
EPA usually does not initiate enforcement actions until it has made a
preliminary determination that a pending SIP revision cannot be
approved.  See EPA, Revised Guidance on Enforcement of State
Implementation Plan Violations Involving Proposed SIP Revisions 3-6
(Aug. 29, 1989).  (Copies of this document have been served on
petitioner and lodged with the Clerk of the Court.) In this case, for
instance, the enforcement action was not filed until after the
proposed disapproval had been published in the Federal Register.  See
J.A. 91-96.

   /33/ Although American Cyanamid was decided some nine months after
Brock, it failed to advert to that decision.  Both the court below
(Pet. App. 16a) and the Sixth Circuit in Alcan Foil (889 F.2d at 1520)
recognized the applicability of Brock to the claim that failure to
meet a statutory deadline for regulatory action bars agency
enforcement of that statute.

   /34/ As in Brock, 476 U.S. at 265, Congress's concern has been that
the United States has not been aggressive enough in enforcing the
statute, not that enforcement targets were being treated too harshly.
See, e.g., S. Rep. No. 1196, 91st Cong., 2d Sess. 21 (1970) ("the
(enforcement) provisions of existing law, although less than adequate,
have not been used to the fullest extent practicable");  S. Rep. No.
127, 95th Cong., 1st Sess. 52 (1977) ("(d)espite the recalcitrance of
some source owners and operators toward expeditiously complying with
requirements under the act, few criminal actions have been brought * *
* ;  (t)he enforcement of the Clean Air Act for the past seven years
has been minimal at best * * *");  H.R. Rep. No. 294, supra, at 71-72
("(s)tate and local enforcement efforts to date ha(ve) been largely
ineffective in bringing about compliance * * * .  The adequacy of
Federal enforcement efforts was also questioned.  * * * (M)any steps
need to be taken to improve and expedite Federal, State, and local
enforcement activities.").  See also Ohio Environmental Council v.
United States District Court, 565 F.2d 393, 397 (6th Cir. 1977)
(noting "the strong Congressional policy in favor of prompt
enforcement of the Act").

   /35/ As we have explained (pp. 19-22, supra), EPA's inability to
take final action within four months is often due to factors beyond
the agency's control, such as the requirement for public comment and
the need to accommodate State requests for delay.  Cf. Brock v. Pierce
County, 476 U.S. at 261 ("(T)he Secretary's ability to complete (his
statutory duty) within 120 days is subject to factors beyond his
control.").  Indeed, the deadline in Brock -- 120 days -- is similar
to the four-month deadline here, and the process of reviewing SIP
revisions is at least as complex as the Secretary's responsibility to
resolve the matter of misspent funds at issue in Brock.

   /36/ Two types of actions to compel agency action should be
distinguished -- a suit to compel agency action under the Clean Air
Act (Section 304(a)(2);  42 U.S.C. 7604(a)(2)) and a suit to compel
agency action under the Administrative Procedure Act (5 U.S.C.
706(1)).  The Clean Air Act provision authorizes a citizen suit "where
there is alleged a failure of the Administrator to perform any act or
duty * * * which is not discretionary." 42 U.S.C. 7604(a)(2).  "In
order to impose a clear-cut nondiscretionary duty (for purposes of
Section 304(a)(2)) * * * a duty of timeliness must 'categorically
mandat(e)' that all specified action be taken by a date-certain
deadline." Sierra Club v. Thomas, 828 F.2d 783, 791 (D.C. Cir. 1987),
quoting from Natural Resources Defense Council v. Train, 510 F.2d 692,
712 (D.C. Cir. 1974).  If there is a categorical mandate in the
statute that EPA act on a SIP revision within four months, the remedy
to compel agency action would lie under Section 304(a)(2).  See Pet.
App. 14a (noting that Section 304(a) provides a remedy to compel
timely action on SIP revision);  Alcan Foil, 889 F.2d at 1520-1521
(same);  Council of Commuter Organizations v. Thomas, 799 F.2d at 888
(same).  However, if the four-month deadline is in the statute as a
"guidepost" rather than as a categorical mandate (as suggested by the
court of appeals, Pet. App. 15a), the remedy would be under the APA,
rather than Section 304(a)(2).  Sierra Club v. Thomas, 828 F.2d at 788
n.39, 792 n.62;  cf. National Congress of Hispanic American Citizens
v. Usery, 554 F.2d 1196 (D.C. Cir. 1977);  National Congress of
Hispanic American Citizens v. Marshall, 626 F.2d 882, 891 (D.C. Cir.
1979).  And, if a four-month deadline does not apply at all, suits to
compel agency action unreasonably delayed may still be brought under
the APA.  Sierra Club v. Thomas, 828 F.2d at 796-797;  Cutler v.
Hayes, 818 F.2d 879, 895 & n.137 (D.C. Cir. 1987).  Under any of these
interpretations, judicial relief is available to compel agency action
unjustifiably delayed.

   /37/ Indeed, the Alcan Foil court, while expressing skepticism
about the efficacy of a suit to compel agency action, found the
assessment-of-penalties provision itself a sufficient alternative
remedy, and one already provided by statute.  889 F.2d at 1520-1521.

   The Brief Amcius Curiae of the Chamber of Commerce of the United
States charges (Br. 15) that EPA engaged in "calculated conduct" to
deprive the State of Kentucky of its statutory prerogatives, by
allegedly delaying action on a SIP revision until applicable
requirements changed in a way that undercut the proposed revision.
This contention was raised by Alcan Foil for the first time during
EPA's appeal to the Sixth Circuit, and was sharply disputed by EPA.
The court of appeals did not resolve the issue, noting that it should
be considered by the district court on remand.  889 F.2d at 1521.  As
a general matter, it seems plain that penalties would be unwarranted
for a period of prejudicial delay that was caused solely by the
deliberate conduct of the agency.  Even if a delay was not deliberate,
we agree that the source's good faith in complying with a clearly
approvable SIP revision would be a factor the district court should
consider in determining whether to assess penalties.  Conversely, if
the proposed SIP revision is clearly deficient, a source's reliance on
it would not warrant a reduction in penalties.

   /38/ Petitioner specifically urges (Br. 25-26) that EPA should give
priority attention to those SIP revisions that are relevant to
enforcement actions.  Congress, however, has given no indication that
EPA should so order its priorities.

   /39/ This principle fully applies to petitioner's hypothetical
example (Br. 35 n.45) of conflicting equipment requirements:  in the
case of a direct conflict, the federal requirement controls.  To the
extent petitioner suggests that its hypothetical describes this case,
petitioner is mistaken.  The Massachusetts SIP contained emission
limitations for sources of pollutants, effective December 31, 1985.
The choice of methodologies (and equipment) for meeting that
limitation was the source's.  See J.A. 29.

   /40/ If the proposed revision is more stringent than the approved
SIP, and if it is immediately applicable as a matter of state law, the
state law is enforceable (42 U.S.C. 7416).  In such a circumstance,
compliance with the more stringent state requirement would subsume
compliance with, and not "conflict" with, the less stringent federal
requirement.

   /41/ The Clean Air Act provides that a citizen may file an
injunctive action against any source "alleged to be in violation of *
* * an emission standard or limitation under this chapter," which is
defined to include "a schedule or timetable of compliance" and "any
condition or requirement under an applicable implementation plan
relating to * * * air quality maintenance plans." Sections 304(a)(1),
(f)(1), and (f)(3);  42 U.S.C. 7604(a)(1), (f)(1), and (f)(3).
Although the American Cyanamid court had no occasion to consider
whether a citizen suit to enforce the applicable implementation plan
would also be barred if EPA takes more than four months to act on a
SIP revision proposal, that court's concerns to penalize EPA for its
delay and to insure against improper rejection of a SIP revision
logically would not apply to citizens bringing an enforcement action.
Moreover, it would violate the language and spirit of Section 304 to
bar citizen suits merely because EPA could not bring an action.
Congress spelled out the limits on citizens suits with specificity;
such an action is barred where EPA "is diligently prosecuting a civil
action" (Section 304(b)(1)(B);  42 U.S.C. 7604(b)(1)(B)), but not
where EPA has been disqualified from doing so because of its delay.

   /42/ To reduce any differences between state and federal
requirements while a SIP revision is pending, EPA has provided States
with the option of "parallel processing" in which the state and
federal processes would proceed simultaneously.  See 47 Fed. Reg.
27,073-27,074 (1982).  Contrary to the statement of amici Motor
Vehicle Manufacturers Association et al. (Br. 14 & n.14), EPA has
never "discontinued" the parallel processing option, and the procedure
is used when a State appropriately chooses to exercise that option.
See, e.g., 54 Fed. Reg. 14,969 (1989).

   /43/ Petitioner's contentions about its own efforts at "improved
compliance" (Br. 36;  see also Br. 6) can of course be appropriately
presented to the district court.  In light of petitioner's submission
of its claim to this Court as a justification for an across-the-board
enforcement bar, however, it may be notable that petitioner's decision
to replace the existing lacquer lines with a BC/CC system was made
explicitly to "enable the plant to produce vehicles with a finish
quality competitive in today's world market" and to be "consistent
with the trend in the entire domestic auto industry" (J.A. 41);  that
the BC/CC system was no longer "innovative" technology by 1985 (J.A.
94);  and that the reason for low emission rates at the new facility
was, at least in part, the separate statutory requirement of a "lowest
achievable emission rate" for a new facility in a nonattainment area
(42 U.S.C. 7502(b)(6), 7503(2)).  Furthermore, construction of the new
facility does not necessarily justify the continuing high rate of
emissions from the old facility after the SIP compliance date and
before petitioner closed it.  Finally, petitioner's comparison of the
$20 million cost of placing emission controls on the lacquer lines
with the $200 million cost of the BC/CC system (Br. 6 & n.3) overlooks
the fact that the $20 million figure represents the cost of pollution
controls, while the $200 million figure represents the cost of an
entire replacement coating facility which petitioner desired to
install, at least in substantial part, for competitive reasons
unrelated to pollution control (J.A. 41).

   /44/ Petitioner's particular allegations challenging EPA's denial
of the proposed SIP revision will be considered in that action with
the benefit of a full record, and are not properly considered here.
Once again, however, because petitioner repeats those allegations so
persistently, a brief comment on two points is warranted.  First,
petitioner claims that a reference in the December 2, 1986, notice of
proposed disapproval to "an enforcement mechanism" is evidence of
improper commingling of functions.  Br. 38 n.48.  See J.A. 96 ("This
disapproval will prevent GM from deferring the topcoat and final
repair compliance dates (from December 31, 1985 to August 31, 1987) by
revising the State regulation.  Extensions of the December 31, 1985
date should instead be obtained through an enforcement mechanism.").
However, the reference is simply to the Delayed Compliance Order (DCO)
procedure, spelled out in the enforcement section of the Act (Section
113(d);  42 U.S.C. 7413(d)).  A DCO contains a schedule with
increments of progress that ensures compliance as expeditiously as
practicable, and has several other advantages over a SIP revision,
which does not provide the same certainty of expeditious compliance.
Congress contemplated that extensions would generally be handled
through this procedure (see H.R. Rep. No. 294, supra, at 56-58), and
extensive negotiations regarding a possible DCO took place while EPA
was reviewing the proposed SIP revision (J.A. 75, 89).  This reference
to the DCO procedure in no way indicated that EPA had ceased to view
the SIP revision proposal as a regulatory matter.

   Second, petitioner emphasizes (Br. 38) that the final disapproval
was published in the Federal Register on September 16, 1988, which was
also the day that EPA's opening brief was filed in the court of
appeals.  (The Administrator had signed the final disapproval twelve
days earlier, on September 4, 1988.  53 Fed. Reg. 36,014.)
Petitioner's suggestion that this evidences some impropriety on EPA's
part is without foundation, and, in any event, can be considered fully
in the pending action challenging EPA's disapproval of the SIP.

   /45/ Cf. United States v. Ford Motor Co., 814 F.2d at 1102 ("(I)f
state control of ambient air emissions were final, in short order,
major shifts of smoke stack industries to states with the most lenient
pure air standards would inevitably take place.").  See also J.A. 125
(district court notes hardship to Framingham workers if "the plant was
moved out of state").

   /46/ Cf. W. Rodgers, supra, at Section 3.39 ("The decision in
American Cyanamid extends to the polluter the profit from delay. * * *
(T)he opinion may encourage SIP-submitters to develop the art of the
'unapprovable package,' replete with data shortages and loose ends * *
* .").

   /47/ See, e.g., H.R. Rep. No. 294, supra, at 72 ("The more (that)
legal challenges to the regulations can delay enforcement, the longer
any investments for control equipment can be deterred.");  Duquesne
Light, 698 F.2d at 463 (Congress added the Section 120 recoupment
provisions in 1977, in part because "the expense of reducing emissions
(was) making it profitable for industry to delay needed expenditures
as long as possible").

   /48/ The Alcan Foil court stated in dictum that "the court may
assess penalties from the date of the notice of noncompliance" (889
F.2d at 1521).  In fact, however, in a Section 113 proceeding,
penalties may be assessed from the first day of violation (see, e.g.,
United States v. SCM Corp., 667 F. Supp. 1110, 1122-1123 (D. Md.
1987));  in a Section 120 proceeding, in contrast, as in American
Cyanamid, the statute is explicit that administrative penalties accrue
only from the date of a "notice of noncompliance" (Section
120(d)(3)(C);  42 U.S.C. 7420(d)(3)(C)).

   /49/ As we noted in our brief in opposition to certiorari (at
14-15), Congress is currently considering proposed amendments to the
Clean Air Act regarding EPA review of SIP revisions.  We will keep the
Court apprised of any pertinent developments.

   /50/ Issues which may arise in future cases are context-specific,
and per se rules would generally be inadvisable.  The reasonableness
inquiry should be informed, however, by the Agency guidelines on SIP
revision processing (see p. 23, supra).  While those guidelines have
been adopted for internal Agency purposes and do not confer rights on
other persons, they generally illuminate a proper reconciliation of
the need for prompt action on SIP revisions with the need to comply
with rulemaking requirements and to carry out the important review
role that Congress intended.

   APPENDIX