Petitioners Reply Brief — Adamo Wrecking Co. v. United States

Supseme Court, U. S$.

-~ FILED

MAY 19 1977

MICHAEL RODAK, JR., CLERK

Supreme Court of the Anited States

OctoserR TERM, 1976.

No. 76-911

ADAMO WRECKING CO.,

Petitioner,

vs.

UNITED STATES OF AMERICA.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT.

BRIEF FOR PETITIONER.

BuRTON Y. WEITZENFELD,

ARTHUR L. KLEIN,

STANLEY M. LIPNICK,

75th Floor—Sears Tower,

Chicago, Illinois 60606,

Counsel for Petitioner.

ARNSTEIN, GLUCK, WEITZENFELD

& MINow,

Of Counsel.

Gunthorp Warren Printing Company, Chicago e Financial 66565

TABLE OF CONTENTS.

PAGE

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EE oe ee ee eee 7

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| EP PPPS TITTTTILIST TITEL eT Tire 11

1. The Trial Court Properly Examined the Regula-

tion on its Face To Ascertain whether it is an

de dads ed' 11

2. The Trial Court Correctly Held that the Regu-

lation is not an Emission Standard ........... 14

EEE a en’ eae 20

EEE ES een ee Al

TABLE OF CITATIONS.

Cases.

Breen v. Selective Service System, 396 U. S. 460 (1970). 13

Ethyl Corp. v. Environmental Protection Agency, 541 F.

2d 1 (D. C. Cir.), cert. denied, 426 U. S. 941 (1976)

vconveeesénecesenees be.50 eae 9, 10, 11, 15, 18

Leedom v. Kyne, 358 U. S. 184 (1958) ............ 12,14

Manges v. Camp, 474 F. 2d 97 (Sth Cir. 1973) ...... 13, 14

Natural Resources Defense Council v. Environmental Pro-

tection Agency, 475 F. 2d 969 (D. C. Cir. 1973) .... Il

Natural Resources Defense Council v. Environmental Pro-

tection Agency, 489 F. 2d 390 (Sth Cir. 1974) reversed

in part, sub nom. Train v. Natural Resources Defense

Counc, 433 U. & GD (CIGFE) . ccc cccvenesseunus 15

Oestereich v. Selective Service System, 393 U. S. 233

CRGGR) on cccccccccecsscseses 6 eee 13

United States v. Calamaro, 354 U. S. 351 (1957) ...... 19

United States v. Standard Oil Co., 384 U. S. 224 (1965) 19

Yakus v. United States, 321 U. S. 414 (1944) ........ 12

Statutes.

28 U. & CO. 6 ESBOEED .ccccievecdecsteneeeene l

Clean Air Act, as amended:

Section 110, 42 U. S. C. § 1857c-5 ............ 11,17

Section 111, 42 U. S. C. § 1857c-6 .............. 18

Section 112, 42 U. S.C. § 1857c-7 ........... passim

Section 113, 42 U. S. C. § 1857c-8 ...2, 4,7, 11, 13, 17

Section 202, 42 U. S. C. § 1857f-1 ............. 15

Section 211, 42 U. S. C. § 1857f-6 .............. 11

Section 307, 42 U. S. C. § 1857h-5 ...2, 4,8, 9, 12, 13

iii

Regulations.

40 C. F. R. § 61.22(d), 38 Fed. Reg. 8820 (April 6,

Mince eenenssbebesoocenccccecocecs 5, 8, 10

Other Authorities.

Grad, Rosenthal, et al., The Automotive and The Regula-

tion of Its Impact on the Environment (June 30, 1974) 16

S. Rep. No. 91-1196 (91st Cong., 2d Sess., Sept. 17,

Tt Pipe eeeebheedeecceeesoocecescees 10, 11, 18

H. R. 17255 (91st Cong., 2d Sess. 1970) ............ 17

S. 4358 (9ist Cong., 2d Sess. 1970) ... 2... 6c cee 17

Conf. Rep. No. 91-1783 (91st Cong., 2d Sess., Dec. 17,

1970); 3 U. S. Code Cong. and Adm. News 5356

DMR ebheadeebesnevcescoccocococecccece 17

Letter dated March 22, 1974, to Hon. Gerald R. Ford

from Hon. Russell E. Train (Addendum to this Brief).10, 16

Proposals submitted by the Ford Administration, January

30, 1975, to amend the Clean Air Act and the Energy

Supply and Environmental Coordination Act, 5 BNA

Environmental Reporter, Current Developments, 1572

Eis cccdevedsoebeceoececcecoese 10, 16

Supreme Court of the Anited States

Octoper Term, 1976.

No. 76-911.

ADAMO WRECKING CO.,

Petitioner,

vs.

UNITED STATES OF AMERICA.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT.

The opinion of the Sixth Circuit (Pet. App. Al-Al11) is re-

ported at 545 F. 2d 1. The opinion of the District Court (Pet.

App. Al2-A47) is unreported.

JURISDICTION.

This is a proceeding on writ of certiorari to review a decision

of the United States Court of Appeals for the Sixth Circuit.

Jurisdiction is conferred upon this Court by 28 U. S. C. § 1254

(1). The judgment of the Sixth Circuit was entered on Novem-

ber 1, 1976. On November 24, 1976 (No. A-426), Mr. Justice

Stewart extended the time for filing the petition to and including

December 31, 1976, on which date the petition was filed.

STATUTES AND REGULATIONS.

The case involves Sections 112, 113(c)(1)(C) and 307(b)

of the Clean Air Act, as amended. These sections are codified

as 42 U. S. C. §§ 1857c-7, 1857c-8(c)(1)(C), and 1857h-5

(b), respectively. They are officially published at 84 Stat. 1685,

1687 and 1708, respectively, and provide as follows:

“Sec. 112.(a) For purposes of this section:

(1) The term ‘hazardous air pollutant’ means an air

pollutant to which no ambient air quality standard is ap-

plicable and which in the judgment of the Administrator

may Cause, or contribute to, an increase in mortality or an

increase in serious irreversible, or incapacitating reversible,

illness.

(2) The term ‘new source’ means a stationary source

the construction or modification of which is commenced

section establishing an emission standard which will be

applicable to such source.

(3) The terms ‘stationary source’, ‘modification’, ‘owner

or operator’ and ‘existing source’ shall have the same mean-

ing as such terms have under section 111 (a).

(b)(1)(A) The Administrator shall, within 90 days

after the date of enactment of the Clean Air Amendments

of 1970, publish (and shall from time to time thereafter

revise) a list which includes each hazardous air pollutant

for which he intends to establish an emission standard

under this section.

(B) Within 180 days after the inclusion of any air

pollutant in such list, the Administrator shall publish pro-

posed regulations establishing emission standards for such

pollutant together with a notice of a public hearing within

30 days. Not later than 180 days after such publica-

tion, the Administrator shall prescribe an emission stand-

ard for such pollutant, unless he finds, on the basis of

information presented at such hearings, that such pollutant

clearly is not a hazardous air pollutant. The Administra-

tor shall establish any such standard at the level which in

his judgment provides an ample margin of safety to protect

the public health from such hazardous air pollutant.

ee

3

(C) Any emission standard established pursuant to this

section shall become effective upon promulgation.

(2) The Administrator shall, from time to time, issuc

information on pollution control techniques for air pollu-

tants subject to the provisions of this section.

(c)(1) After the effective date of any emission standard

under this section—

(A) no person may construct any new source or modify

any existing source which, in the Administrator’s judgment,

will emit an air pollutant to which standard applies unless

the Administrator finds that such source if properly oper-

ated will not cause emissions in violation of such standard,

and

(B) no air pollutant to which such standard applies

may be emitted from any stationary source in violation of

such standard, except that in the case of an existing

source—

(i) such standard shall not apply until 90 days after

its effective date, and

(ii) the Administrator may grant a waiver permitting

such source a period of up to two years after the effective

date of a standard to comply with the standard, if he finds

that such period is necessary for the installation of controls

and that steps will be taken during the period of the waiver

to assure that the health of persons will be protected from

imminent endangerment.

(2) The President may exempt any stationary source

from compliance with paragraph (1) for a period of not

more than two years if he finds that the technology to

implement such standards is not available and the opera-

tion of such source is required for reasons of national

security. An exemption under this paragraph may be ex-

tended for one or more additional periods, each period not

to exceed two years. The President shall make a report to

Congress with respect to each exemption (or extension

thereof) made under this paragraph.

(d)(1) Each State may develop and submit to the Ad-

ministrator a procedure for implementing and enforcing

emission standards for hazardous air pollutants for sta-

4

tionary sources located in such State. If the Administrator

finds the State procedure is adequate, he shall delegate to

such State any authority he has under this Act to im-

plement and enforce such standards (except with respect

to stationary sources owned or operated by the United

States).

(2) Nothing in this subsection shall prohibit the Ad-

ministrator from enforcing any applicable emission stand-

ard under this section.

Sec. 113(c)(1) Any person who knowingly—

* oe * * *

(C) violates section 111(e), section 112(c) or section

119(g) shall be punished by a fine of not more than

$25,000 per day of violation, or by imprisonment for

not more than one year, or by both. If the conviction is

for a violation committed after the first conviction of

such person under this ph, punishment shall be a

fine of not more than $50,000 per day of violation or by

imprisonment for not more than two years, or by both.

Sec. 307(b)(1) A petition for review of action of the

Administrator in promulgating any national primary or

secondary ambient air quality standard, any emission stand-

ard under section 112, any standard of performance under

section 111; any standard under section 202 (other than

a standard required to be prescribed under section 202

(b)(1)), any determination under section 202(b)(5),

any control or prohibition under section 211, or any stand-

ard under section 231 may be filed only in the United

States Court of Appeals for the District of Columbia.

A petition for review of the Administrator's action in ap-

proving or promulgating any implementation plan under

section 110 or section 111(d), or his action under section

119(c)(2)(A), (B), or (C) or under regulations there-

under, may be filed only in the United States Court of

Appeals for the appropriate circuit. Any such petition shall

be filed within 30 days from the date of such promulgation,

approval, or action or after such date if such petition is

based solely on grounds arising after such 30th day.

5

(2) 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 criminal

proceedings for enforcement.”

This case also involves the following regulation promulgated

on April 6, 1973,* by the Administrator of the Environmental

Protection Agency, 40 C. F. R. § 61.22(d); 38 Fed. Reg.

8820 ef seq.:

Ҥ 61.22 Emission Standard.

e * * . s

(d) Demolition: Any owner or operator of a demoli-

tion operation who intends to demolish any institutional,

commercial, or industrial building (including apartment

buildings having more than four dwelling units), structure,

facility, installation, or portion thereof which contains any

boiler, pipe, or load-supporting structural member that is

insulated or fireproofed with friable asbestos material shall

comply with the requirements set forth in this paragraph.

(1) Notice of intention to demolish shall be pro-

vided to the Administrator at least 20 days prior to

commencement of such demolition or anytime prior

to commencement of demolition subject to paragraph

(d)(4) of this section.

Such notice shall include the following information:

(i) Name of owner or operator.

(ii) Address of owner or operator.

(iii) Description of the building, structure, facility,

or installation to be demolished.

(iv) Address or location of the building, struc-

ture, facility, or installation.

(v) Scheduled starting and completion dates of

demolition.

(vi) Method of demolition to be employed.

* The regulation has subsequently been amended in respects not

here material.

6

(vii) Procedures to be employed to meet the re-

quirements of this paragraph.

(2) The following procedures shall be used to

prevent emissions of particulate asbestos material to

outside air:

(i) Friable asbestos materials, 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 as-

bestos debris shall be wetted adequately to insure that

such debris remains wet during all stages of demoli-

tion and related handling operations.

(ii) No pipe or load-supporting structural mem-

ber that is covered with friable asbestos insulating or

fireproofing material shall be dropped or thrown to

the ground from any building, structure, facility, or

installation subject to this paragraph, but shall be

carefully lowered or taken to ground level.

(iii) No friable asbestos debris shall be dropped

or thrown to the ground from any building, structure,

facility, or installation subject to this paragraph or

from any floor to any floor below. For buildings,

structures, facilities, or installations, 50 feet or greater

in height, friable asbestos debris shall be transported

to the ground via dust-tight chutes or containers.

(3) Sources subject to this paragraph are exempt

from the requirements of §§ 61.05(a), 61.07, and

61.09.

(4) Any owner or operator of a demolition oper-

ation who intends to demolish a building, structure,

facility, or installation to which the provisions of this

paragraph would be applicable but which has been

declared by proper State or local authority to be

structurally unsound and which is in danger of im-

minent collapse is exempt from the requirements of

this paragraph other than the reporting requirements

specified by paragraph (d)(1) of this section and the

7

wetting of friable asbestos debris as specified by para-

graph (d)(3)(i) of this section.”

QUESTIONS PRESENTED.

1. Whether the Federal Courts are compelled to enforce

the illegal and unauthorized directives of the Administrator of

the United States Environmental Protection Agency?

2. Whether the Federal Courts are compelled to convict

citizens for conduct which Congress has not made a crime?

STATEMENT OF THE CASE.

On February 20, 1975, a United States Grand Jury for

the Eastern District of Michigan returned a two-count super-

seding indictment (A. 3), charging petitioner with violating

criminal provisions of the Clean Air Act, as amended (“the

Act” hereinafter), while demolishing a building in Detroit.

On petitioner's motion (A. 5), the District Court dismissed the

first count before trial for failure to allege an offense against

the laws of the United States (A. 1).* The Government ap-

pealed (A. 1, 2), and the Sixth Circuit reversed and remanded

for trial (A. 1, 2). This Court granted certiorari to review the

Sixth Circuit's decision.

The indictment** charged violation of Section 112(c) of the

Act, 42 U.S. C. § 1857c-7(c), criminal penalties for which are

provided by Section 113, 42 U. S. C. § 1857c-8(c). Section

112(c), in pertinent part, provides:

“(1) After the effective date of any emission standard

under this section—

. * * * .

* The trial court also ruled that disposition of the second count

would require tation of the facts (Pet. App. A. 46-47).

Further proceedings on that count have been slayed by the tial

court pending final disposition of this case.

** Since the case before this Court involves only the first count,

it will be referred to herein for convenience as “the indictment.”

(B) no air pollutant to which such standard applies

0 ee ea Pay Ge 3

tion of such standard. .

The regulation which petitioner was accused of violating bears

the title “Emission Standard”, but actually specifies a work

practice or methodology to be followed in demolishing build-

ings containing friable asbestos materials:

“Friable asbestos materials . . . shall be wetted and re-

moved . . . before wrecking of load-supporting structural

aa is commenced... .” 40 C. F. R. $61.22(d)

)(i).

The theory of petitioner's motion to dismiss was that, not-

withstanding its title, the regulation is not in substance an

emission standard within the meaning of Section 112(c) which

prohibits an emission in violation of an emission standard (the

charge against petitioner). The Government took a contrary

position on the merits, and also argued that the trial court

was precluded from deciding whether the regulation is an emis-

sion standard because it is so entitled and because Section

307(b)(2) of the Act, 42 U. S. C. § 1857h-5S(b)(2), pro-

vides:

“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 criminal proceedings

for enforcement.”

The District Court noted (Pet. App. A30-32) that petitioner

was not seeking to raise any factual issues or to question the

Administrator's wisdom, judgment or expertise, but rather con-

tended that the regulation on its face is not an emission standard

(Pet. App. A34). The trial court held that Section 307(b) (2)

did not preclude him from deciding that pure question of law.

Act as a whole (Pet. App. A36-40), concluding (Pet. App.

A40) that Congress had clearly created a statutory scheme by

which emission standards were to set quantitative limits on

9

permissible emissions and were to be implemented by techniques

for controlling emission. Accordingly, he held that an emission

standard cannot be the same thing as a mere technique for

controlling emissions (Pet. App. A40). Since petitioner was

accused of violating a regulation which only mandated a tech-

was not charged with violating an “emission standard” within

the meaning of Section 112 of the Act. He therefore dismissed

the indictment for failure to charge an offense against the laws

of the United States (Pet. App. A44).

The Sixth Circuit reversed (Pet. App. All), noting (/d.,

at A1Q) that the demolition work practice rule could have been

but was not brought before the District of Columbia Circuit

by petition for statutory review filed within thirty days, pursuant

to Section 307(b) (1), 42 U. S.C. § 1857h-5(b) (1). The Court

held that Section 307(b)(2) prevented the trial court from

examining the substance of the regulation to ascertain whether it

is an emission standard within the meaning of the statute making

it a crime to violate an emission standard. In the Court of Ap-

peals’ view, if the Administrator issues a regulation titled

“Emission Standard” and if no petition to review is filed in the

District of Columbia Circuit within thirty days, the District

Courts have no choice but to enforce the regulation in a crimi-

nal proceeding regardless of its substantive content.

The Sixth Circuit did not decide whether the regulation is

an emission standard within the meaning of the criminal provi-

sion, but remarked that it found no clear departure from statu-

tory authority (Pet. App. All). The Court ignored the ex-

plicit language of Section 112, which requires the Administrator

to prescribe an emission standard for stationary sources and

which does not under any circumstances authorize him to sub-

stitute a different kind of regulation, even though such alterna-

tive authority is provided in other sections of the Act dealing

with other sources of emissions. See Ethyl Corp. v. E. P. A.,

541 F. 2d 1, 11 n. 14 (D. C. Cir. 1976), cert. denied, 426

10

U. S. 941 (1976). The Court of Appeals disregarded the

Administration's repeated admissions that a work practice rule

is not an “emission standard” within the meaning of Section

112.* Nor did the Sixth Circuit acknowledge the distinction

between mandating an end product—quantitatively regulated

emissions—and methods for achieving that end product (com-

pare, Ethyl Corp v. Environmental Protection Agency, supra).

The Court of Appeals also noted (Pet. App. A9, n. 2) that

it did not seem inconsistent with the purposes of the Act for

the Administrator to make the work practice rule a basis for

exemption from an otherwise applicable prohibition of any

asbestos emissions. The Court did not comment upon Congress’

explicit policy decision that the Administrator should not make

judgments as to how stationary sources should be oper.ited,

but rather should only specify the results to be achieved ano let

the responsible business people determine how best to achieve

them.** Further, the Court was apparently unaware that the

Administrator had expressly disclaimed any intention to prohibit

all asbestos emissions***, and that the District of Columbia Cir-

*In 1975, the Administration recommended amendment of

Section 112 to authorize design or equipment standards when limita-

tions upon measurement methodology make emission standards

“infeasible”. Proposals submitted by the Ford Administration, Jan-

uary 30, 1975, to amend the Clean Air Act and the Energy Supply

and Environmental Coordination Act, 5 BNA Environmental Re-

porter, Current Developments, 1572, 1574 (Feb. 7, 1975).

letter of March 22, 1974 (reprinted as the Addendum to this

a EPA Administrator Train advised President of the Senate

“Although EPA can establish Federal Emission Standards .

for sources emitting hazardous pollutants, there are occasions where

emission limitations are not the most practical method of control.

For example, emission standards are not appropriate in cases where

emissions from a source are difficult to measure . . . EPA is

requesting authority to set design or equipment standards for. . .

hazardous pollutants whenever the limitations of measurement tech-

— make emission limitations impracticable. . . .” (Addendum,

)

** See S. Rep. No. 91-1196, at page 17 (91st Cong., 2d Sess.,

Sept. 17, 1970).

*** 38 Fed. Reg. 8820-1 (April 6, 1973).

11

cuit has held that the Administrator is not authorized to create

exemptions from Clean Air Act regulations in addition to those

specifically provided by statute.*

Petitioner submits that the Sixth Circuit’s decision is clearly

wrong. Accordingly, it should be reversed and this cause re-

manded with directions to reinstate the trial court’s judgment.

ARGUMENT.

1. The Trial Court Properly Examined the Regulation on Its

Face to Ascertain Whether It Is an Emission Standard.

The Administrator’s authority to regulate emissions of asbestos

and other hazardous air pollutants by stationary sources is

contained in Section 112(b) of the Act, 42 U.S. C. § 1857c-

7(b). That authority is limited to the prescription of an “emission

standard”, even though other sections of the Act explicitly

confer flexibility in choosing among more than one type of

regulation.** Thus, Congress clearly evidenced its intention

that other types of regulations would not be used to control

emissions of hazardous pollutants by stationary sources. In

fact, Congress made a conscious policy decision that the Ad-

ministrator should not undertake to dictate methods of operation

to owners of stationary sources, S. Rep. No. 91-1196, at page

17 (91st Cong., 2d Sess., Sept. 17, 1970).

* Natural Resources Defense Council, Inc. v. Environmental

Protection Agency, 475 F. 2d 969, 970 (D. C. Cir. 1973).

** Thus, Section 110, 42 U. S. C. § 1857c-5, mentions a wide

variety of regulations which might be contained in a plan to im-

plement national ambient air quality standards, and Section 11! 3(c)

(1)(A), 42 U. S. C. § 1857c-8(c)(1)(A), makes it a crime to

violate any requirement of an implementation plan. Similarly, the

Administrator’s primary emphasis on control of pollution by motor

vehicles is to consist of emission standards, but Section 211(c),

42 U. S. C. § 1857f-6(c), confers alternative authority to regulate

ine additives, under certain circumstances. See Ethyl Corp. v.

PA, 541 F. 2d 1 (D. C. Cir. 1976), cert. denied, 426 U. S. 941

(1976).

12

Moreover, Section 112(b) is more than merely permissive.

Its subsection (1) (B) imposes upon the Administrator the man-

datory obligation that he “shall prescribe an emission standard”

(emphasis supplied). Thus, petitioner's contention that the work

practice regulation is not an emission standard attacked the

regulation on its face, not merely as exceeding the Administra-

tor’s authority, but indeed as embodying his own continuing

violation of the mandatory duty to promulgate an emission

standard.

The Sixth Circuit’s holding that the District Court was pre-

cluded from entertaining this facial attack upon the regulation

means that whenever unauthorized or illegal regulations are not

challenged within thirty days, the District Courts have no alter-

native but to make private citizens criminals for conduct which

Congress did not intend to make a crime and has not made a

crime. Indeed, the effect of the Court of Appeals’ decision is that

the Federal Courts must enforce a regulation which embodies

the Administrator’s continuing violation of law.

The Court of Appeals relied principally upon this Court's

decision in Yakus v. United States, 321 U. S. 414 (1944) (Pet.

App. A8-9). In Yakus, this Court sustained the constitution-

ality of a withdrawal provision somewhat analogous to Section

307(b)(2) of the Act, and held that it precluded a criminal

defendant from asserting the unconstitutionalify .2 an OPA

regulation as applied to the facts of that case. However, this

Court explicitly refrained from holding that the withdrawal pro-

vision would operate to bar a defense that the regulation sought

to be enforced was invalid on its face (321 U. S. at 446-7).

Obviously, petitioner’s contention that the demolition work

practice regulation is not an emission standard was directed

at the regulation on its face. Hence, Yakus cannot support the

Court of Appeals’ decision because the issue here is precisely the

issue which this Court specifically declined to decide,

The proper reading of Section 307(b)(2) is indicated by

Leedom v. Kyne, 358 U. S. 184 (1958), which held that the

=

13

illegal conduct of an administrative agency can be challenged

before the Federal Courts independently of statutory review

provisions. The rationale of that decision was that, in providing

for statutory review, Congress does not contemplate facially

unauthorized and illegal administrative action:

“.. . This suit is not one to ‘review’, in the sense of that

term as used in the Act, a decision of the Board made

within its jurisdiction. Rather it is one to strike down an

order of the Board made in excess of its delegated

and contrary to a specific prohibition in the Act.” (358

U. S. at 188.) (Emphasis supplied.)

In Manges v. Camp, 474 F. 2d 97 (Sth Cir. 1973), the

Court confronted a withdrawal provision at least as all-encom-

passing as Section 307(b)(2) of the Clean Air Act. The Comp-

troller of Currency had issued an allegedly unauthorized ad-

ministrative order, but the aggrieved party had not sought

review in the court nor within the time specified by the statutory

review provision. The Fifth Circuit held that the withdrawal

provision did not preclude an “out-of-time” attack on the order

as being unauthorized on its face. Citing Oestereich v. Selective

Service System, 393 U. S. 233 (1968), and Breen v. Selective

Service System, 396 U. S. 460 (1970), the Fifth Circuit held:

“. . . if the Comptroller was not acting within his au-

thority granted by Congress, then 12 U. S. C. § 1818(i)

[the withdrawal provision] could not withdraw jurisdiction.”

(474 F. 2d at 99.) (Emphasis supplied.)

These decisions should be controlling here. They stand for

the proposition that the Federal Courts must not condone and

enforce unauthorized and illegal administrative action, but

rather must entertain challenges to such conduct, “withdrawal”

provisions notwithstanding, lest our government by law be re-

placed by a government of men who ignore the law.

Petitioner was charged with knowingly violating an emission

standard, made criminal by Sections 112(c)(1)(B) and

113(c)(1)(C). Petitioner claimed that the regulation it was

14

accused of violating was not an “emission standard” within the

meaning of the criminal provisions. Petitioner claimed that the

regulation, on its face, exceeded the scope of the Administra-

tor’s authority and represented a continuing violation of his

statutory mandate to prescribe an emission standard. The Sixth

Circuit was wrong to hold that petitioner could not defend on

tnese grounds, that the Federal Courts are powerless to review

the lawless conduct of an administrator and are compelled to

enforce his unauthorized and illegal regulations. Leedom v.

Kyne, supra, and Manges v. Camp, supra, stand squarely for the

proposition that petitioner's facial attack upon the work practice

the Sixth Circuit's decision to the contrary was error and should

be reversed.

2. The Trial Court Correctly Held That the Regulation Is

Not an Emission Standard.

Upon consideration of the statute itself, the District Court

recognized the obvious intent of Congress to approach the prob-

lem of air pollution through measurable standards which specify

quantified levels of emissions, and the equally obvious statu-

tory distinction between such emission standards, on the one

hand, and methods or techniques of implementing them on the

other.

The very section petitioner is accused of violating, Section

112(c), on its face contemplates that an emission standard and

an emission control technique are two different things. Thus,

the President's subsection (c)(2) authority to exempt a source

from compliance with an emission standard upon finding, among

other things, “that the technology to implement such standards

is not available,”* is an obvious statutory contemplation that

an emission standard is not the same thing as an emission con-

trol technique.

*42 U.S. C. § 1857e-7(c)(2), emphasis supplied.

1S

Section 112(b) requires the Administrator to prescribe an

emission standard for each “hazardous” pollutant and in addi-

tion requires him to “issue information on pollution control

techniques for air pollutants subject to the provisions of this

section”. These two subsections, read together, further indicate

the clear distinction between emission standards and methods

or techniques for controlling emissions.

The Act also provides for promulgation of emission standards

for new motor vehicles and, as the trial court recognized, those

provisions, too, indicate that emission standards must be dif-

Thus, Section 202(b) of the Act, 42 U. S. C. § 1857f-1(b):

in subsection (2), requires emission standards to be

based on “measurement techniques” ;

in subsection (4), requires EPA to report to Congress

“with respect to the development of systems necessary to

implement the emission standards established pursuant to

this section”; and

in subsection (5)(C), provides for a temporary sus-

pension of an emission standard if “effective control tech-

nology, processes, operating methods, or other alternatives”

are not available “to achieve compliance” with the

standard.

An emission standard simply cannot be the same thing as

a control technology, a process, an operating method, or any

other technique of reducing or preventing emissions.

This distinction between an “emission standard” which speci-

fies a result to be achieved and control technology which may be

used to achieve the mandated result was recognized by the Dis-

trict of Columbia Circuit in Ethyl Corp. v. Environmental Pro-

tection Agency, 541 F. 2d 1, n. 14 at 11 (D. C. Cir. 1976),

cert. denied, 426 U. S. 941 (1976). The District Court's view

that an “emission standard” is to define the level of permitted

emissions was foreshadowed by the Fifth Circuit's note that emis-

sion standards are “specific quantitative limits on the amounts

given individual sources may emit into the air.” Natural Re-

16

sources Defense Council, Inc. vy. Environmental Protection

Agency, 489 F. 2d 390, 394 n. 2 (Sth Cir. 1974), reversed in

part on other grounds, sub nom. Train v. Natural Resources

Defense Council, 421 U. S. 60 (1974) (emphasis supplied).

According to a study prepared for and supported by the Na-

tional Science Foundation:

“Emission standards specify the maximum legally per-

missible flow rates of certain pollutants from the emission

source into the air.” Grad, Rosenthal, et al., The Auto-

mobile and the Regulation of its Impact on the Environ-

ment, at page 12 (June 30, 1974).

Even the Agency and the Administration recognize that the

work practice regulation sought to be enforced below is not

an “emission standard” within the meaning of the Act. Thus, by

letter of March 22, 1974 (reprinted in full text as the Adden-

dum hereto), EPA Administrator Train transmitted proposed

Clean Air Amendments to then-President of the Senate Ford,

advising him, inter alia:

“Although EPA can establish Federal emission standards

. for sources emitting hazardous pollutants . . . emission

standards are not appropriate in cases where emissions

from a source are difficult to measure... .” at Addendum

page AS. (Emphasis supplied. )

During the following year, the Administration again recom-

mended Clean Air Amendments to Congress, including addition

to Section 112(b) of explicit authority for the Administrator

to prescribe a design or equipment standard instead of an

emission standard:

“If the Administrator determines that technological or

economic limitations on the application of measurement

methodology to a particular class of sources would make

the imposition of an emission standard infeasible. . . .”

5 BNA Environmental Reporter, Current Developments,

1572 (Feb. 7, 1975).

As the trial court also noted, Congress did in fact prohibit

violation of every kind of regulation which might be issued

17

under other sections of the Clean Air Act. Thus, implementa-

tion plans are promulgated under Section 110 of the Act, 42

U. S. C. § 1857c-5, and it is a crime to knowingly violate any

requirement of an implementation plan under the circumstances

specified in Section 113, 42 U. S. C. § 1857c-8(1)(A). The

District Judge was clearly correct in drawing from this the

negative inference that Section 112(c), 42 U. S. C. § 1857c-

7(c)(1)(B), was only intended to prohibit a violation of the

one kind of regulation named therein—an emission standard.

Congress’ failure to make it a crime to violate any kind of

Section 112 regulation in any way except by an emission in

violation of an emission standard was not inadvertent. The

House and Senate passed different versions of Clean Air Act

amendments in 1970. The House passed H. R. 17255, in which

form it would have covered all stationary source emissions in

a single section, including provisions to the effect that the

Administrator might require sources to use pollution control

measures specified by him. The Senate, however, amended

H. R. 17255 by striking everything except its number and en-

acting clause, substituting the provisions of a completely dif-

ferent bill.* Thus, while the- Senate passed a bill designated

H. R. 17255, its provisions were those of S. 4358, which dealt

with stationary source emissions in three consecutive sections,

none of which provided that the Administrator might require a

particular source to operate in the particular manner which he

might consider best.

In this respect, the view which prevailed in Conference, and

which thereafter became law, was that of the Senate, not

the House. Thus, Section 112 of the Act, like the Senate

version, contains no provision suggesting that EPA might re-

quire sources to use pollution control measures of its selection.

Accordingly, to find the rationale of this omission from the

Act, one would seek the Senate’s reason for amending H. R.

* Conf. Rep. No. 91-1783 (Dec. 17, 1970), reprinted in 3 U. S.

Code Cong. & Adm. News 5356, 5374 (1970).

|

17255 as it did, and that reason may be found in the legislative

history of S. 4358. |

The first of the three stationary source sections of S. 4358

dealt with standards of performance and was the antecedent of

what is now Section 111. A “standard of performance” is a

“standard for emissions” and must be “achievable”, Section

111(a)(1), 42 U. S. C. § 1857c-6(a)(1). It was the Senate’s

specific intent that the Administrator not make judgments as

to the best methods of implementing standards, but rather that

he should simply:

“. . , determine the achievable limits and let the owner

or operator determine the most economic, acceptable

technique to apply.” S. Rep. No. 91-1196, at page 17.

(91st Cong., 2d Sess., September 17, 1970.)

Unlike a Section 111 standard of performance, a Section

112 emission standard for a “hazardous” pollutant need not

be achievable, but is subject to Presidential exemption if it is

not achievable by available implementing technology, Section

112(c)(2), 42 U. S. C. § 1857c-7(c)(2). The Senate’s in-

tention was patently the same here as with respect to standards

of performance. The Administrator was to determine the emis-

sion levels which must be achieved, and each affected business-

man was to decide how his own business could best achieve

them.*

Congress’ intent to regulate emissions of asbestos is not dis-

puted in the abstract. However, the legislature did not intend

to empower the Administrator to require stationary sources to

operate in ways selected by him. For this reason, it is not a

crime to violate in any way any kind of regulation which EPA

might issue under Section 112. It is only a crime for an emission

* Even where the Administrator was authorized to issue different

kinds of regulations in licu of emission standards, the latter were given

statutory preference because of the patent Congressional intent to

minimize Agency interference with the normal prerogative of busi-

nessmen to run their own business. See Ethyl Corp. v. Eviron-

mental Protection Agency, 541 F. 2d 1, 11 (D. C. Cir.), cert.

denied, 426 U. §. 941 (1976).

19

to violate an emission standard. The indictment charging peti-

tioner incurably failed to allege this essential element of the

crime which Congress defined.

The Administrator may have issued the work practice rule

instead of the emission standard required by Section 112 be-

cause he thought he knew more when he set out to implement

the statute than Congress knew when it passed the law. If so,

his wisdom in concluding that any asbestos emissions from

demolition should be controlled by a regulation of work prac-

tices instead of by an emission standard, while not conceded

by petitioner, is simply irrelevant. This Court has already held

that an administrator's wisdom cannot justify putting citizens

on trial for acts which Congress did not make criminal:

“This case comes to us at a time in the Nation’s history

when there is greater concern than ever over pollution

* * * The crisis that we face in this respect would not,

of course, warrant us in manufacturing offenses where

Congress has not acted nor in stretching statutory language

in a criminal field to meet strange conditions.” United

States v. Standard Oil Co., 384 U. §, 224, 225 (1965).

“Neither we [the Court] nor the Commissioner may re-

write the statute simply because we may feel that the

scheme it creates should be improved upon.” United

States v. Calamaro, 354 U. §S. 351, 357 (1957).

20

The judgment of the Sixth Circuit should be reversed and

the cause should be remanded with directions to reinstate the

District Court's judgment dismissing Count I of the indictment.

Respectfully submitted,

BuRTON Y. WEITZENFELD,

ArTuur L. KLEIN,

STANLEY M. LIPNICK,

75th Floor—Sears Tower,

Chicago, Illinois 60606,

Counsel for Petitioner.

ARNSTEIN, GLUCK, WEITZENFELD

& MINow,

Of Counsel.

oe

Al

ADDENDUM TO BRIEF FOR PETITIONER.

Unirep STATES ENVIRONMENTAL PROTECTION AGENCY

Washington, D. C. 20510

Mar. 22, 1974

Office of the

Administrator

Dear Mr. President:

I am pleased to forward to you a proposed bill, “The Clean

Air Act Amendments of 1974”, which is designed to improve

the Federal-State program to achieve clean air.

Air pollution directly affects all of our citizens because of the

adverse effects on their health and welfare and because of the

increased costs they pay for goods and services. The Clean Air

Act Amendments of 1970 have established a strong and effective

program to protect the American public from the adverse health

effects as well as other effects of air pollution. Under the 1970

law EPA has established air quality standards to protect health

and welfare. The States have adopted and are implementing

detailed programs to ensure compliance with the standards.

The automobile industry has made significant progress in re-

ducing motor vehicle emissions. States and localities are de-

veloping transportation control strategies that will not only

help achieve higher air quality, but also reduce congestion and

provide more balanced transportation systems. These are only

illustrative of the major progress that the law has stimulated

Now, with more than three years of experience, we are in a

position to suggest some specific areas in which the law needs

to be strengthened or made more workable. The amendments

which we are suggesting are intended to improve upon the

basic thrust of the Act and to take into account new realities,

particularly the energy problems which the Nation faces. They

are also intended to deal realistically, but with continued firm

A2

commitment, with specific problems of inability to achieve the

statutory deadlines for the ambient air quality standards in

severe problem areas such as Los Angeles.

The cornerstone of the Clean Air Act is the establishment of

Air Quality Standards designed to protect the Nation's health

and welfare and development by the States of implementation

plans to insure attainment of those standards by designated

statutory deadlines.

We are suggesting three changes dealing with the statutory

deadlines for air quality standards; first, to provide greater

flexibility in dealing with transportation controls for those areas

heavily impacted by motor vehicle pollution; second, to provide

for EPA review of State implementation plans in order to en-

courage the use of clean fuels in geographic areas of most

need; and third, when necessary, to temporarily extend compli-

ance dates for certain stationary source fuel limitations.

To date, transportation controls have been proposed for 38

metropolitan areas. Many of these communities can achieve the

national photochemical oxidant 2nd carbon monoxide ambient

air quality standards by mid-1977 through the application of

new motor vehicle emission standards, stringent stationary source

standards and in some cases, additional control efforts, such as

institution of inspection and maintenance programs and greater

use of mass transit and car pools. A number of communities,

however, are so heavily impacted by motor vehicle-related pollu-

tants that severe gasoline rationing would be necessary to

achieve air quality standards within the statutory deadline, even

after all other control measures were instituted.

We are proposing that for those communities where attain-

ment of standards by 1977 would cause serious economic and

social disruption, EPA be authorized to allow up to five addi-

tional years for compliance with the air quality standards. EPA

would grant this exura time only if all reasonable control meas-

ures under existing plans have been or will be instituted. EPA

would be authorized to provide a further five-year extension

in those cases where it would not be possible to achieve com-

Se ee oe ee +

A3

pliance within the first five years. Providing additional time in

appropriate cases will enable communities to attain the flexibility

they need to develop the long-term transportation system solu-

tions necessary to help meet air quality standards.

In developing implementation plans for sulfur oxides control,

many States did not assess the aggregate impact of their regula-

tory requirements on available fuel supplies nationwide. Our

projections indicate that there will be a shortage of low-sulfur

content fuels as well as stack gas scrubbing technology, to meet

the deadline in the Clean Air Act as required in State imple-

mentation plans.

In addition, we are proposing authority to permit EPA to

issue enforcement orders beyond the statutory deadlines in the

Act. In cases where the extension must be given to sources that

have failed to make good faith efforts, EPA would be required

to seek criminal or civil sanctions.

We are proposing a review of State implementation plans to

identify State emission regulations that require the use of

lower sulfur fuel than is needed to meet the primary air quality

standards. Based on this review, EPA could issue enforcement

orders through the amendment discussed above, to the extent

necessary to eliminate the anticipated clean fuels deficit. This

would complement EPA’s current voluntary program of en-

couraging revisions of State implementation plans to ensure

that limited clean fuel supplies are available where needed to

meet health-related primary standards. Neither the current pro-

gram nor the proposed amendment would infringe on the im-

portant principle that States have the prerogative to adopt and

enforce more stringent controls if they choose to do so. Such

revised schedules would ensure that the primary air quality

standards would not be violated and that attainment of State

and local standards will be achieved as soon as possible.

Enactment of this proposal would have the benefit of making

scarce low-sulfur fuels and control hardware available first in

urban areas where they are most needed, allowing for the alloca-

A4

tion of low sulfur fuels and new technology in the most logical

time sequence to meet our air quality objectives.

The Nation’s energy supply problems have been exacerbated

by greatly increasing demand which has resulted in dependence

on foreign sources of crude oil. To reverse such dependence,

it will be necessary for some oil burning power plants to convert

to coal.

We are proposing both a short and long-term solution to

deal with this problem. These proposals are similar to provisions

contained in the recently vetoed Energy Emergency Act. One

provision, virtually identical to that in the Energy Emergency

Act, would provide authority for the President—through the

Federal Energy Office—to mandate coal conversion. Accom-

panying this provision would be a limited exemption to the

National Environmental Policy Act for such actions, which was

also covered by the Energy Emergency Act. The exemptions

would be for only one year and would require environmental

analyses. The thrust of NEPA is protected since any long-term

conversion would have to meet all the requirements of NEPA.

In cases where the Federal Energy Office has mandated coal

conversion, the Administrator of EPA would have authority to

temporarily suspend any emission standard or limitation in viola-

tion of primary air quality standards. Once the applicable dead-

line under the Clean Air Act is reached—either 1975 or 1977—

the source would be required to achieve primary standards until

June 20, 1980. At that time, the source would have to move

beyond primary standards to the extent needed to achieve emis-

sion limitations in the original State implementation plan. The

interim requirement to achieve primary standards is a departure

we have flexibility in the application of sanctions. In many cases,

the greater flexibility of civil penalties will be a much more

effective mechanism to encourage compliance than criminal

penalties; in other cases, criminal penalties will be more appro-

priate.

In his January 23, 1974, message to the Congress on measures

to deal with the energy crisis, the President made his recom-

ee

AS

mendation for extending auto emission standards. He stated this

proposal would “permit auto manufacturers to concentrate

greater attention on improving fuel economy while retaining a

fixed target for lower emissions. These changes can be made

without significant effect on our progress in improving air qual-

ity.” The attached language would extend HC and CO standards

at the 1975 interim level for 1976 and 1977 NOx standards at

3.1 grams per mile for the same two years.

The final item of our proposed legislation would extend the

authorizing authorities of the Clean Air Act for two additional

years. Last year, the Congress extended the Act’s authorizations

to June 30, 1974, at the Fiscal Year 1973 levels of $475 mil-

lion. We are proposing extending the Act for the next two fiscal

years at the $475 million level. This amount should be sufficient

to carry forward the Nation’s air pollution control program.

These above amendments have been discussed intensively

throughout the Executive Branch and I support their enactment.

There are, however, two proposals set forth in Attachments B

and C which I do not support. Nonetheless, other Executive

Branch agencies believe they are needed and I am therefore for-

warding them for consideration by the Congress. These

proposals concern “intermittent control systems” and “significant

deterioration.”

In support of the proposal permitting indefinite use of inter-

mittent or alternative control systems, other agencies state that:

(1) such systems will allow some utilities and industrial sources

to meet ambient air quality standards at a cost significantly

lower than the cost of continuous emission control systems and

with a smaller energy penalty; (2) such systems involve less

solid waste than some of the scrubber technologies; and (3) that

use of such systems could encourage the coal industry to make

greater investments in new mines. This proposal would permit

the use of alternative or intermittent control measures indefi-

nitely as long as they would meet national ambient air quality

standards.

A6

EPA's concern with intermittent control systems as a perma-

nent control strategy rests heavily on information becoming

increasingly available as to the effects on public health of the

sulfates that are formed in the ambient air as a product of the

sulfur oxide gaseous emissions. EPA studies indicate that meas-

urable adverse health effects are present at ambient sulfate levels

of 8-10 micrograms per cubic meter. These levels are exceeded

in large parts of the country, particularly in the Midwest and

Northeast. The permitting of uncontrolled emissions of sulfur

dioxide except during periods of adverse meterological condi-

tions would be expected to contribute in a major way in ambient

air sulfate loadings. In my opinion, therefore, amending the Act

to encourage indefinite or intermittent control systems would be

highly inappropriate, and could be more costly in the long run

should new requirements to deal with sulfates force expensive

retrofits.

Recent court interpretation of the Clean Air Act requires the

Administrator of EPA to establish standards to prevent “signifi-

cant deterioration” of air already cleaner than required by

national ambient air quality standards designed to protect public

health and welfare. In support of this proposal other agencies

State that the effect of this interpretation is to extend the

Federal regulatory authority beyond standards set to protect

the public health and welfare and to establish a new criterion,

namely the quality in a given area at the time the Act was

passed. They feel that his extension of the Federal regulatory

authority will limit the range of choice of State and local govern-

ments in economic development and land use matters to a

degree deemed unnecessary and unwarranted. This proposal

would remove the authority of the Federal government to

promulgate standards more stringent than those set to protect

public health or welfare, but would not remove the authority

of State and local governments to establish and maintain air

quality standards cleaner than required by the Federal govern-

ment should they choose to do so.

“=

A7

As a result of extensive written comments, public hearings and

interagency discussions, EPA believes that meaningful steps

can be taken to protect areas with already high air quality

through classification by the States of geographic areas into

one of three general classes:

(1) Air quality area better than secondary standards in

which only restricted growth would take place;

(2) Air quality area better than secondary standard but

in which moderate growth would be permitted;

(3) Air quality level to be determined by secondary

standards.

The final classification of areas into these categories would

take place after public hearings. No hard emission or air quality

increments would be promulgated by EPA as limiting factors.

Since the EPA regulation would not provide for firm maximum

increments of pollution, it is expected that court challenges as

to the adequacy of the EPA promulgation would take place.

Because of the potential for further litigation, the importance

of this issue to our environmental and energy problems and

the potential impact of EPA’s regulations on State and local

land use responsibilities, EPA believes that Congress should

explore all alternatives for dealing with the significant deteriora-

tion issue in testimony and debate.

In closing, 1 would like to reiterate that significant progress

has been made under the Clean Air Act. We look forward to

early hearings and full Congressional debate on these proposals.

Sincere , yours,

/s/ Russert EB. Train

Russell E. Train,

Administrator.

Honorable Gerald R. Ford

President of the Senate

Washington, D. C. 20510.