Opposition — Adamo Wrecking Co. v. United States

No. 76-911

ee , JR., CLERK

In the Supreme Court of the United States

OcTOBER TERM, 1976

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ADAMO WRECKING CO., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DANIEL M. FRIEDMAN,

Acting Solicitor General,

Perer R. Tart,

Assistant Attorney General,

EDMUND B. CLARK,

JOHN J. ZIMMERMAN,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the United States

OcToRER Term, 1976

No. 76-911

ADAMO WRECKING CO., PETITIONER

Ve

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI 10 THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-Al1)

is reported at 545 F. 2d |. The opinion of the district court

(Pet. App. Al2-A47) is not officially reported.

JURISDICTION

The judgment of the court of appeals was entered on

November |, 1976. Mr. Justice Stewart extended the time

within which to file a petition for a writ of certiorari to

December 31, 1976, and the petition was filed on that

date. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

QUESTION PRESENTED

Whether the special judicial review provisions of Section

37(b) of the Clean Air Act bar a defendant in a criminal

(1)

2

enforcement action from challenging the emission standard

he is charged with violating.

STATUTE INVOLVED

Section 307(b) of the Clean Air Act, as added, 84

Stat. 1708, 42 U.S.C. 1857h-5(b), provides in pertinent

part:

(1) A petition for review of action of the Admini-

strator in promulgating * * * any emission standard

under section 112, * * * may be filed only in the

United States Court of Appeals for the District of

Columbia. * * * Any such petition shall be filed within

30 days from the date of such promulgation or ap-

proval, or after such date if such petition is based

solely on grounds arising after such 30th day.

(2) Action of the Administrator with respect to

which review could have been obtained under para-

graph (1) shall not be subject to judicial review in

civil or criminal proceedings for enforcement.

STATEMENT

|. To carry out his duties under Section | 12 of the Clean

Air Act, as added, 42 U.S.C. 1857c-7, to protect the public

health from hazardous air pollutants, the Administrator of

the Environmental Protection Agency declared asbestos to

be a “hazardous air pollutant” and promulgated emissions

standards regulating the emissions of asbestos caused by a

broad range of activities. See 40 C.F.R. 61.20-61.24, 38 Fed.

Reg. 8829-8830.

One portion of these regulations established an emission

standard applicable to the demolition of buildings and

structures containing boilers, pipes. or structural members

insulated or fireproofed with friable asbestos material. In

addition to specific prior notification requirements, this

emission standard provided (40 C.F.R. 61.22(d) (1973) ):

BEST PL AVMLABLE

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(2) The following procedures shall be used to prevent

emissions of particulate asbestos material to outside

air:

(i) Friable asbestos materia!s, used to insulate or

fireproof any boiler, pipe. or load-supporting struc-

tural member, shall be wetted and removed from any

building, structure, facility, or installation subject to

this paragraph before wrecking of load-supporting

structural members is commenced. The friable asbes-

tos debris shall be wetted adequately to insure that

such debris remains wet during all stages of demoll-

tion and related handling operations.

Although this emission standard could have been chal-

lenged in the United States Court of Appeals for the Dis-

trict of Columbia Circuit if the judicial review procedures

specified in Section 307(b) of the Act had been properly

invoked, this was not done. A petition for review filed

by Dore Wrecking Company, in which the National As-

sociation of Demolition Contractors intervened, was dis-

missed by that court as untimely. Dore Wrecking Co. v.

Fri, C.A. D.C., No. 73-1686, decided August |, 1973.

2. One count of a two count superseding indictment

returned in February 1975 in the United States District

Court for the Eastern District of Michigan charged that

petitioner:

did knowingly cause the emission of asbestos from

a four and one-half story commercial masonry build-

ing at the aforementioned location by failing to wet

and remove firable [sic] asbestos material, used to

insulate and fireproof a boiler in the basement of said

building. before demolition of the load-supporting

structural supports had begun: in violation of Title 42.

United States Code. Section 1857c-7(c1)(B), and the

4

rules and regulations promulgated thereto, 38 F.R.

8829 (April 6, 1973), 40 C.F.R. §61.22(d)(2){i).

Petitioner moved to dismiss this count, arguing that the

regulation was invalid because Section 112 permits the

Administrator to set only a numerical limit of permissible

emissions, not to establish the “work practice” rules that

had been promulgated. The United States supported the

regulation on the merits and argued, as well, that Section

307(b) of the Act foreclosed petitioner's challenge to the

validity of the emission standard.

The district court dismissed this count of the indictment,

holding that Section 112 did not authorize the “work

practice” standard (Pet. App. A34-A44). Responding to the

contention that Section 307(b) barred the court from

deciding the case on that basis, the district court charac-

terized Section 307(b) as “highly ambiguous” and chose “to

resolve doubts in favor of jurisdiction” (id. at A33).

The court of appeals reversed. The court discerned

nothing vague or ambiguous in Section 307(b). The

legislative history of Section 307(b) demonstrated that

review had been placed in the District of Columbia Circuit

to ensure “even and consistent national application” of the

standards, and that the 30-day time limit for seeking review

was designed “to maintain the integrity of the time

sequences provided throughout the Act” (Pet. App. A10).

The court pointed out that petitioner could have challenged

the emission standard through the Section 307(b) proce-

dure had it chosen to do so (ibid.). Therefore, the court

concluded, petitioner could not challenge the standard in

this criminal case.'

‘Although the court of appeals did not pass upon the validity of the

emission standard. it observed (Pet. App. A9 n. 2) that it saw:

nothing inconsistent with the purposes of this statute in the Ad-

ministrator’s promulgation of a “work practice” as a condition of

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ARGUMENT

The decision of the court of appeals is correct. This is

the first appellate decision to pass upon the extent to which

a defendant in a criminal case may attack the emission regu-

lation he is alleged to have violated. Consequently, there is

no conflict among the courts of appeals on the question

presented here.? Although the question is potentially im-

portant, and might warrant review if a conflict were to

arise, there is no reason for review of this decision.

In Union Electric Co vy. Environmental Protection

Agency, 427 U.S. 246, the Court held that (427 U.S. at 253;

emphasis added):

an emission standard which, absent fulfillment of the work prac-

tice conditions, otherwise prohibits any emission of particulate

asbestos material into the ambient air.

?The question presented in this case is before the Fifth Circuit in a

similar criminal enforcement action, United States v. Big Chief, Inc.,

No. 76-3419. Petitioner's challenge to the “work practice” nature of the

emission standard has been raised, belatedly, in petitions to review

amendments to other portions of the asbestos emission standard for the

demolition in¢ustry. National Association of Demolition Contractors

v. Train, C.A_ D.C., Nos. 74-1545 and 75-2078. The Administrator has

argued in response to the petitions for review that the question cannot

now be raised, because the time provided by Section 307(b) has lapsed

and no grounds for the belated challenge have been offered.

In other contexts, courts of appeals have applied the requirements of

Section 307(b) strictly, rejecting challenges that were not made at the

right time or in the right court. See, e.g., Lubrizol Corp. v. Train, C.A. 6,

No. 76-1618, decided November 30, 1976; Oljato Chapter of the Navajo

Tribe v. Train, 515 F. 2d 654, 661 (C.A. D.C.); Natural Resources

Defense Council, Inc. vy. Environmental Protection Agency, 512 F. 2d

1351, 1354-1356 (C.A. D.C.); Granite City Steel Co. vy. Environmental

Protection Agency, SO\ F. 2d 925. 926 (C.A. 7), Anaconda Co. v.

Ruckelshaus, 482 F. 2d 1301, 1304-1305 (C.A. 10), Getty Oil Co.

(Eastern Operations) v. Ruckelshaus, 467 F. 2d 349, 359 (C.A. 3),

certiorari denied, 409 U.S. 1125. See also Sun Enterprises, Lid. v. Train,

532 F. 2d 280, 287 (C.A. 2) (parallel provision under Federal Water

Pollution Control Act).

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Section 307(b)(1) allows petitions for review to be

filed in an appropriate court of appeals more than 30

days after the Administrator's approval of an imple-

mentation plan only if the petition is “based solely on

grounds arising after such 30th day.”[*]

The Court further held that any new “grounds” must be

grounds that, if known by the Administrator before act-

ing, would have made it an abuse of discretion to have

issued the regulation or standard in question (427 U.S.

at 256).

Petitioner, in its attack on the emission standard. meets

none of Section 307(b)'s requirements. It raises the lack-of-

statutory-authority argument out of time, in the wrong

court, in an action for enforcement; it does not even contend

that it presents new “grounds” that could not have been

presented in the time Congress allotted. Litigation of the

issue petitioner now raises in this criminal enforcement

proceeding is barred by Congress’ command in Section

307(b)(2) that:

Action of the Administrator with respect to which

review could have been obtained under paragraph (1)

shall not be subject to judicial review in civil or crimi-

nal proceedings for enforcement.

An exclusive and time-restricted review provision simply

means that, once the time for challenge has passed, regula-

tions become final and have the force of the statute itself.

Nothing in such a procedure offends the Constitution.

Yakus v. United States, 321 U.S. 414. Yakus is on all fours

with the present case. The Court held in Yakus that price

‘Review of the Administrator's approval or promulgation of an im-

plementation plan must be sought in the court of appeals “tor the

appropriate circuit” under Section 307(b). The 30-day time limit for

petitioning and the restriction upon later review still apply.

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control regulations may constitutionally be made the sub-

ject of an exclusive review proceeding, and that if the spe-

cial review proceeding affords those affected “a reasonable

opportunity to be heard” (321 U.S. at 433), Congress may

bar a defendant in a criminal case from attacking regula-

tions that could have been attacked in the special! review

proceeding.

In Yakus, as here, it was sufficient that petitioners had

not followed the available avenue for review or established

that the prescribed procedures would have been inadequate

to protect their rights. Cf. Califano v. Sanders, No. 75-1443,

decided February 23, 1977, slip op. 8-9 (courts must respect

congressional decisions to confine judicial review to parti-

cular times and courts). Petitioner bypassed the review pro-

ceeding available under the Clean Air Act, and its neglect

is not a sufficient reason to allow it to make its arguments

belatedly in this criminal case.‘

*Leedom v. Kyne, 358 U.S. 184, does not support petitioner. Leedom

interpreted the ambiguous requirement of a “final” order (29 U.S.C.

160(f)) in favor of prompt review. The Court concluded that to deny

any review there would create a statutory right without a legal remedy.

358 U.S. at 190-191. There is a remedy specifically provided by Section

307(b\ 1) in this case, however: petitioner is foreclosed from challeng-

ing the regulations by congressional design and its own neglect. not

by any legislative ambiguity or inadvertence.

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CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DANIEL M. FRIEDMAN,

Acting Solicitor General.

Perer R. Tarr,

Assistant Attorney General.

EDMUND B. CLARK,

Joun J. ZIMMERMAN,

Attorneys.

Marcu 1977.

DO4J-1977-03