Respondents Brief — Adamo Wrecking Co. v. United States

No. 76-911

— ee ee

Gn the Supreme Court of the United States

Ocroper Term, 1976

Apamo Wreckine Co., PRTITIONER

v.

Unrrep Starts or AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT O1

1PPRALS FOR THE SINTH CIRCUIT

BRIEF FOR THE UNITED STATES

DANIEL M. FRIEDMAN,

Acting Solicitor General,

JAMES W. MOORMAN.

Acting (asistant Attorney General,

FRANK H EASTERBROOK,

tant te the Solicitor Gencral

RAYMOND N. ZAOONE.

PATRICK A. MULLOY,

JOHN J. ZIMMERMAN,

iftorne ys,

The partment of Juatice.

Washington, DC. 20580.

G. WILLIAM FRICKE,

Ceneral Counsel,

GERALD K. GLEASON,

Deputy Associate General Coanael,

RONALD S. NAVEEN,

Attorney.

Environmental Protection Agency.

Weshington, DC. 20560

INDEX

ea

CEE aanncecewasessnsscessessssesssse

1 —

— ..... .——

Summary of argument ——

I. The distriet court may not consider the

validity of a regulation that was not

reviewed by the prescribed procedure

in the court of appeals

A. Congress required expeditious

B. Challenges that could have been

raised immediately after

promulgation of emission con-

trol regulations may not be

urged in defense of criminal

enforcement proceedings

II. Section 112 authorizes the Administra-

tor to control emissions by issuing

limitations upon permissible work

practices instead of, or in addition

to, numerical limitations upon emis-

———

237-676 —77— 1

—

10

10

15

S888

Cases:

CITATIONS

Anaconda Co. v. Ruckelshaus, 482 F. 2d page

1 —-—-— 15-16

Boire v. Greyhound Corp., 376 U.S. 473. 23

Bowles v. Willingham, 321 U.S. 503_.____ 24

Brennan v. Winters Battery Manufactur-

ing Co., 531 F. 2d 317, certiorari denied

sub nom. Winters Battery Manufacturing

Co. v. Usery, 425 U.S. 991 18

Briscoe V. Bell, No. 76-60, decided June

1797 ——̃ 17, 23

Brotherhood of Railway and Steamship

Clerks v. Association for the Benefit of

Noncontract Employees, 380 U.S. 650— 23

Califano v. Sanders, No. 75-1443, decided

. 17, 33

Case v. Bowles, 327 U.S. 9222 24

City of Highland Park v. Train, 519 F. 2d

681, certiorari denied, 424 U.S. 927 15

Connor v. Waller, 421 U.S. 656 8,17

Dore Wrecking Co. v. Fri, C. A. D. C., No.

73-1686, decided August 1, 1973——— 1

E. I. du Pont de Nemours and Co. v. Train,

528 F. 2d 1136, affirmed on other

grounds, No. 75-978, February 23,

ꝓ 2 — 16

Falbo v. United States, 320 U.S. 549 — 21

Friends of the Earth v. Carey, 552 F. 2d

25, petition for a writ of certiorari pend-

Getty Oil Co. (Eastern Operations) v.

Ruckelshaus, 467 F. 2d 349, certiorari de-

ee 16

Cases Continued

Granite City Steel Co. v. Environmental

Protection Agency, 501 F. 2d 925_..---

Investment Company Institute v. Board of

Governors of the Federal Reserve Sys-

tem, 551 F. 2d 1270..................-

Lloyd A. Fry Roofing Co. v. United States

Environmental Protection Agency, C.A.

8, No. 76-1731, decided May 11, 1977

Lubrizol Corp. v. Train, 547 F. 2d 310

McGee v. United States, 402 U.S. 479——

McKart v. United States, 395 U.S. 185

Moore v. City of East Cleveland, Ohio, No.

75-6289, decided May 31, 1977_.-------

Norris v. Gressette, No. 75-1583, decided

Fame GR, Wil teacccecececascascscscssse

Natural Resources Defense Council, Inc. v.

Environmental Protection Agency, 512

Passadena City Board of Education v.

Spangler, 427 U.S. 424.

Peabody Coal Co. v. Train, 518 F. 2d 940_-

Perkins v. Matthews, 400 U.S. 379_-----

Plan for Arcadia, Inc. v. Anita Associates,

501 F. 2d 390, certiorari denied, 419 U.S.

96 — ů ——

Swain v. Pressley, No. 75-811, deeided

Page

IV

Cases—Continued

Train v. Natural Resources Defense Coun- =

Ge Bid: GB GE e... 10-11, 32

Union Electric Co. v. Environmental Pro-

tection Agency, 427 U.S. 246___-_-_- 11, 14, 32

United States v. Big Chief, Inc., 7 E.R.C.

1840, appeal pending, C. A. 5, No. 76

— —— 16, 26, 29

United States v. Board of Supervisors, No.

76-489, decided February 22, 1977 17

United States v. Brandenburg Demolition,

Inc, N.D. III., No. 74 CR 757, decided

United States v. Harvey Wrecking Co.,

N. D. III., No. 74 CR 758, decided Janu-

United States v. Nardi Wrecking Co., N.D.

III., No. 74 CR 756, decided January 2,

——ů ——ññ ͤͤ—— 29

United States v. National Wrecking Co.,

N. D. III., No. 74 CR 755, decided Decem-

2.1. %˙ ¼⸗b. 29

United States v. Southwestern Cable Co.,

II... ae 32

United States v. United Mine Workers, 330

„K A 21

Walker v. City of Birmingham, 388 US.

——ů—ů ů ͤ — 21

Whitney National Bank v. Bank of New

Renee 22

Woods v. Hills, 334 U.S. 210— 24

Yakus v. United States, 321 U.S. 414_ 8, 18, 19, 24

*

Statutes and regulations:

Clean Air Act, as added and amended, 84

Stat. 176, 42 U.S.C. (and Supp. V)

1857 et seq.: —

Section 111, 42 U.S.C. 187-6 29, 31

Section 112, 42 U.S.C. 18577 passim

Section 112(a)(1), 42 U.S.C. 1857¢-7

— 11

Section 112 (b) (1) (B), 42 U.S.C.

1857¢c-7(b)(1)(B) --------------- 11

Section 112 (b) (2), 42 U.S.C. 18576

..... ——K en 29

Section 112 (e), 42 U.S.C. 1857e-

. 8 12

Section 113 (a) (3), 42 U.S.C. (Supp.

ne | ) ? 4

Section 202, 42 U.S.C. 1857f-1 -- 29

Section 211, 42 U.S.C. 1857f-6d— 29

Section 307, 42 U.S.C. 1857h-5—— 13

Section 307(b), 42 U.S.C. 1857h-

988 —— passim

Section 307(b)(1), 42 U.S.C. 1857h-

a, 6, 7, 13, 23, 25

Section 307(b)(2), 42 U.S.C. 1857h-

. — 5, 7, 13, 15, 18, 22,25, 27

Federal Aviation Act of 1958, 72 Stat.

795, 49 U.S.C. 1486 (a) ———— 18

Federal Power Act, 49 Stat. 860, as added

and amended, 16 U.S.C. 825 ———— 18

Federal Trade Commission Act, 38 Stat.

717, as amended, 15 U.S.C. 45(c)------ 18

Occupational Safety and Health Act, 84

Stat. 1602, 29 U.S.C. 660__.._..---.---- 18

VI

Statutes and regulations Continued

Securities Exchange Act of 1934, 48 Stat.

901, as amended, 15 U.S.C. 78y___-_-_-_ 18

.. 23

40 C. F. R. 61.20-61.24———— 3

40 C. F. R. 61.22(d) (197322 3

M seellaneous:

116 Cong. Rec. 42381-42384 (1970) 27

123 Cong. Ree. 89175 (daily ed., June 8,

1 Ä ee we eS 33

1.1 Ea 12

I. 11 öÜ —— 12, 28

I 4˖˙ 11 . 8 28

11 7 — — — 12, 27

I. „„ 28

38 Fed. Reg. 8829-88380 ———— 3

39 Fed. Reg. 15396 (19742222222 14

40 Fed. Reg. 48292 (1975) 222222 14

42 Fed. Reg. 12122 (1977) 14

42 Fed. Reg. 12127 (1977) 2 14

H.R. 17255, 91st Cong., 2d Sess. (1970) 30

H.R. Conf. Rep. No. 91-1783, 91st Cong.,

BS OEE ae ee 31

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

— —„Ṽ — 12-13, 31

S. Rep. No. 95-127, 95th Cong., Ist Sess.

1 ——9ü—.. —.ß aisle 32

In the Supreme Court of the Gnited States

OcroserR TERM, 1976

No. 76-911

ApaMo WRECKING Co., PETITIONER

v.

Unrrep States oF AMERICA

ON WRIT OF CERTIORARI TO TIE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

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

All) is reported at 545 F.2d 1. The opinion of the

district court (Pet. App. A12-A47) is not officially

reported.

JURISDICTION

The judgment of the court of appeals was entered

on November 1, 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 petition was granted on April

4, 1977. The jurisdiction of this Court rests on 28

U.S.C. 1254(1).

(1)

2

QUESTION PRESENTED

Whether the special judicial review provisions of

Section 307(b) of the Clean Air Act bar a defendant

in a criminal enforcement action from challenging the

statutory validity of the emission standard it is

charged with violating.

STATUTES AND REGULATIONS INVOLVED

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

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

tinent part:

(1) A petition for review of action of the

Administrator in promulgating * * * any emis-

sion standard under section 112, * * * may be

filed only in the United States Court of Ap-

peals for the District of Columbia. * * * Any

such petition shall be filed within 30 days from

the date of such promulgation or approval, 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

paragraph (1) shall not be subject to judicial

review in civil or criminal proceedings for

enforcement.

2. Other pertinent statutory provisions and regula-

tions are set out at Pet. Br. 2-7.

STATEMENT

1. To carry out his duties under Section 112 of the

Clean Air Act, as added, 84 Stat. 1685, 42 U.S.C.

1857¢-7, to protect the public health from hazardous

3

air pollutants, the Administrator of the Environ-

mental Protection Agency declared asbestos to be a

“hazardous air pollutant”? and promulgated emission

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 fri-

able asbestos material. In addition to specific prior

notification requirements, this emission standard pro-

vided (40 C. F. R. 61.22(d) (1973)):

(2) The following procedures shall be used

to prevent emissions of particulate asbestos ma-

terial to outside air:

(i) Friable asbestos materials, used to insu-

late or fireproof any boiler, pipe, or load-

supporting structural member, shall be wetted

and removed from any building, structure,

facility, or installation subject to this para-

graph before wrecking of load-supporting

structural members is commenced. The friable

asbestos debris shall be wetted adequately to in-

sure that such debris remains wet during all

stages of demolition and related handling

operations.

Although petitioner could have challenged the emis-

sion standard by filing a timely petition for review in

the United States Court of Appeals for the District

of Columbia Circuit, pursuant to Section 307(b) of

237-676—77——- 2

4

the Act, petitioner did not seek judicial review. In-

deed, the regulation effectively went unchallenged. A

petition for review filed by Dore Wrecking Company,

in which the National Association of Demolition Con-

tractors intervened,’ was dismissed as untimely. Dore

Wrecking Co. v. Fri, C.A.D.C., No. 73-1686, decided

August 1, 1973.

2. On December 18, 1973, the Regional Administra-

tor for Region V of the Environmental Protection

Agency issued an order under Section 113(a)(3) of

the Act, 84 Stat. 1686, as amended, 42 U.S.C. (Supp.

V) 1857e-S(a) (3), directing petitioner in all future

demolitions of structures containing friable asbestos

to comply with the regulation. Petitioner responded

on December 26, 1973, that it would comply fully with

the regulation.’

The Environmental Protection Agency later received

information that petitioner had not complied with the

regulation. An indictment returned on February 20,

1975, in the United States District Court for the

Eastern District of Michigan charged (A. 3) that:

On or about the 19th day of February, 1974,

at 2612 Carter Street, also known as 8751

Linwood Street, in the City of Detroit, County

of Wayne, within the Eastern District of

* Petitioner is a member of the National Association of Demoli-

tion Contractors.

0 Because the district court dismissed the indictment before trial,

the compliance order and petitioner's response are not in the

—4 We have attached them as appendices A and B to this

rief.

5

Michigan, Adamo Wrecking Company, the de-

fendant herein did knowingly cause the emis-

sion of asbestos from a four and one-half story

commercial masonry building at the afore-

mentioned location by failing to wet and re-

move 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, Sec-

tion 1857e-7(c)(1)(B), and the rules and regu-

lations 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 asbestos emission regulation it was charged with

violating is invalid. The regulation directs that a cer-

tain procedure or “work practice” be followed in

demolition of structures containing friable asbestos;

petitioner maintained that the Administrator lacked

the authority to issue a work practice“ rule and was

required by Section 112 of the Clean Air Act to es-

tablish numerical maximum permissible asbestos re-

lease limits (Pet. App. Al3).

The prosecutor both defended the validity of the

regulation and asserted that Section 307(b)(2) of the

Act precluded petitioner from raising the challenge

to the regulation. The prosecutor contended that re-

view of the regulation could have been had exclusively

in the United States Court of Appeals for the District

of Columbia Circuit on a petition for review filed

either within 30 days of the promulgation of the regu-

lation or in that court thereafter if the petition were

based solely on grounds arising after expiration of

the 30-day period (Pet. App. Al4).

During oral argument in the district court, peti-

tioner conceded that it could have sought review of

the regulation’s validity in the District of Columbia

Cireuit, as Section 307(b)(1) provides.’ The district

court nevertheless considered petitioner’s challenge to

the regulation and dismissed the indictment (Pet.

App. Al2-A47). The district court characterized See-

tion 307(b) as “highly ambiguous” and chose “to re-

solve doubts in favor of jurisdiction’? (Pet. App.

A33). The district court then held that the emissions

control regulation was defective because Section 112

required the Administrator to set numerical limits

rather than to prescribe procedures for curtailing

emissions (Pet. App. A34-A44).*

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 exclusively in the Dis-

trict of Columbia Circuit to ensure “even and con-

sistent national application” of the standards, and

that the 30-day time limit for seeking review was de-

* See Court of Appeals App. 85.

* The district court did not dismiss Count II of the indictment,

which charged petitioner with making false statements in certain

required reports (Pet. App. A35 n. 31, A44-A47). Proceedings on

Count IT have been held in abeyance pending final resolution of

petitioner’s challenge to Count I.

7

signed “to maintain the integrity of the time se-

quences provided throughout the Act” (Pet. App.

Al0). The court pointed out that petitioner could

have challenged the emission standard through the

Section 307(b) procedure had it chosen to do so

(ibid.). Therefore, the court concluded, petitioner

could not challenge the standard in this criminal case.“

SUMMARY OF ARGUMENT

I

Section 307(b)(1) of the Clean Air Act provides

that judicial review of national hazardous air pollu-

tant emission standards may be sought in the District

of Columbia Cireuit by filing a petition within 30

days of the promulgation of such a standard. Section

307(b)(2) provides that a jetion of the Adminis-

trator 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” (emphasis added). Section 307(b) was

designed to permit prompt judicial review and assure

uniform results throughout the Nation. If the court

should invalidate any emission standard, the Admin-

istrator would be able to revise the regulations in

* 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 Administrator’s promulgation of a ‘work practice’ as a con-

dition of an emission standard which, absent fulfillment of the

work practice conditions, otherwise prohibits any emission of par-

ticulate asbestos material into the ambient air.”

time to achieve the congressional goal of clean air;

if the court should uphold the standard, or if (as

here) no timely petition for review were filed, the

emission standard would be treated as if it were part

of the statute itself, and the process of compliance

could begin free from unequal regulation or lingering

doubts about the need to comply.

We believe that Section 307(b) therefore should be

construed in accord with its literal terms. It is a

statute allocating judicial review to one particular

court and limiting the time within which to seek re-

view. The Court is familiar with such statutes, and

it has applied them with full force. See, e. g., Connor

v. Waller, 421 U.S. 656; Yakus v. United States, 321

US. 414.

The model for Section 307(b) was the Emergency

Price Control Act upheld in Yakus. The Price Con-

trol Act gave the Emergency Court of Appeals ex-

clusive” jurisdiction of all non-constitutional chal-

lenges to price control regulations, just as the District

of Columbia Circuit has exclusive jurisdiction of chal-

lenges to emission standards. The Court concluded

(321 U.S. at 430-431) that the exclusivity provision

barred any person from challenging the validity of a

price control regulation as a defense in a criminal case,

even though the statute had not, in terms, stated that

challenge would be barred in criminal cases. The

Court then upheld the statute, as so construed, against

constitutional arguments.

This case presents no constitutional question. Pe-

titioner does not contend that Section 307(b) is

9

unconstitutional, that it was unable to challenge the

emission standard in the District of Columbia Circuit,

or that the opportunity to present such a challenge is

ineffective. The case therefore turns solely on the

proper construction of Section 307(b), which is much

more explicit than the statute considered in Yakus.

The Court held in Yakus that a simple exclusivity

provision foreclosed challenge to a regulation in a

criminal case. In Section 307(b) Congress went be-

yond giving exclusive jurisdiction to the District of

Columbia Circuit; it explicitly precluded subsequent

challenges in any criminal proceeding. “['T ]he statute

expressly covers the situation” presented by this case,

and the Court should “read it as it is written”

(Swain v. Pressley, No. 75-811, decided March 22,

1977, slip op. 5, 6).

II

Because the court of appeals held that the regula-

tion was not subject to challenge, it did not consider

petitioner’s contention that the emission standard is

invalid. If the Court should disagree with our argu-

ments concerning Section 307(b), however, then it

should remand the case to the court of appeals to

allow that court to consider petitioner’s remaining

arguments in the first instance.

If the Court reaches the validity of the asbestos

emission standard, then it should uphold the Adminis-

trator’s decision. Congress contemplated that airborne

asbestos, an extremely hazardous pollutant, would be

subject to rigid control. When it proved impractical

to achieve reduction of emissions by setting numerical

10

maximum emission rules, the Administrator decided

to issue regulations requiring demolition contractors

to conduct their operations under conditions that are

likely to hold emissions to a minimum. The alterna-

tive to this approach would have been to adopt a rule

of no visible emissions,” which would have brought

demolition work to a halt. Petitioner is not entitled

to complain that 7 Administrator instead selected

an effective method of control that is simple, rela-

tively inexpensive, and does not require the demoli-

tion industry to go out of business.

ARGUMENT

I

THE DISTRICT COURT MAY NOT CONSIDER THE VALIDITY

OF A REGULATION THAT WAS NOT REVIEWED BY THE

PRESCRIBED PROCEDURE IN THE COURT OF APPEALS

A. CONGRESS REQUIRED EXPEDITIOUS RESOLUTION OF CHALLENGES IN A

SINGLE FORUM

This case involves two important provisions of the

Clean Air Amendments of 1970. The first is Section

112, 42 U.S.C. 1857¢-7, which requires the Administra-

tor of the Environmental Protection Agency to issue

regulations of nationwide applicability controlling the

emission of especially hazardous air pollutants. The

second is Section 307(b), 42 U.S.C. 1857h-5(b), which

determines the time and court for judicial review of

the Administrator’s actions.

The general plan of the Clean Air Amendments has

been discussed by this Court in Train v. Natural Re-

il

sources Defense Council, Inc., 421 U.S. 60, and Union

Electric Co. v. Environmental Protection Agency, 427

U.S. 246. Congress required the Administrator to pro-

mulgate national “primary” and “secondary” air

quality standards that were to be reviewed in the

District of Columbia Circuit. Each State then was

required to submit an implementation plan designed

to achieve the primary air quality standards as ex-

peditiously as possible, but ordinarily not later than

three years after the date of approval of the imple-

mentation plan. Judicial review of the “local” issues

raised by the implementation plans was placed in the

courts of appeals having jurisdiction in the States

involved in each plan. Variances from the plan are to

be held to a minimum (f'rain, supra); and assertions

that achievement of the plans’ goals would be techno-

iogically infeasible are not a basis for attacking an

implementation plan (Union Electric Co., supra).

Section 112 supplements this program by requiring

the Administrator to restrict the emission of especially

hazardous air pollutants from stationary sources.

Section 112(a)(1) requires the Administrator to issue

national emission standards with respect to any air

pollutant that may cause, or contribute to, an in-

crease in mortality or an increase in serious irrevers-

ible, or incapacitating reversible, illness.” Congress

instructed the Administrator to publish a list of haz-

ardous air pollutants within 90 days from the effective

date of the Act. Proposed regulations were to be pub-

lished 180 days thereafter, and Section 112(b) (1) (B)

237-676—77——3

12

required the Administrator to prescribe final emission

standards not later than 180 days after initia! publica-

tion. Private compliance was to take place immedi.

ately in the case of new sources and within 90 days

for existing sources.’

Congress anticipated that asbestos would be one of

the air pollutants controlled under Section 112.“ The

Administrator agreed that control of asbestos was ap-

propriate. On March 29, 1971, the Administrator pub-

lished an initial list of three hazardous air pollutants—

asbestos, beryllium, and mercury (see 36 Fed. Reg.

5931). On December 7, 1971, the Administrator pub-

lished proposed standards for asbestos (36 Fed. Reg.

23239). After extensive hearings and revisions in the

regulatio.is, the Administrator published the final

regulations on April 6, 1973 (38 Fed. Reg. 8820).

This final promulgation of the regulations brought

into play Section 307(b), the special judicial review

provision of the Clean Air Amendments. Because the

asbestos emission regulations applied nationwide, See-

tion 307(b) directed that any judicial review be had

in the District of Columbia Circuit.

Congress sought to ensure expeditious judicial re-

view no less than expeditious administrative action

and expeditious private compliance.“ See S. Rep. No.

* Section 112(c its w Presidential exemptions

from this 121 — — not relevant here.

See, ¢.g., S. Rep. No. 91-1196, 91st Cong., 2d Sess. 20 (1970).

The Senate committee stressed (ibid.) that “the violation of a

prohibition or emission standard for any substance which is

hazardous to the health of j :

— jure.” persons requires an expeditious enforce-

13

91-1196, 91st Cong. 2d Sess. 41 (1970). Section

307(b)(1) therefore required any challenges to be

filed within 30 days. And, in order to guarantee that

the expeditious and uniform results produced by

judicial review under Section 307(b) (1) would not be

disturbed by subsequent attacks in other forums, See-

tion 307(b)(2) provides that: “Action of the Admin-

istrator 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’’ (emphasis added).

Section 307 originated in the Senate. The Senate

committee explained that “[b]ecause many * * ad-

ministrative actions are national in cope and require

even and consistent national application, * * * any re-

view of such actions shall be in the United States

Court of Appeals for the District of Columbia.“ The

committee considered a total preclusion of judicial

review, but it instead decided to restrict all review to

the single selected forum; the committee stated that

“the bill would specifically provide for [any] review

within controlled time periods” and that any later

challenge could be raised only if “it is alleged that sig-

nificant new information has become available.“

That “new information’’ exception applies, however,

only to information that, if known at the time of

promulgation, would have made it an abuse of discre-

tion for the Administrator to have acted as he did; in

any other event, Section 307(b)(2) forecloses review

* S. Rep. No. 91-1196, supra, at 41.

0 Jd. at 41, 42.

14

altogether. See Union Electric Co., supra, 427 U.S. at

253, 256.

Petitioner has not attempted to bring itself within

the “new information”? exception to Section 307 (b).

Indeed, since petitioner is challenging the regulation

on its face, no claim of “new information’’ would be

tenable.” Petitioner has not contended that it was un-

able to obtain review of the asbestos regulation within

30 days in the District of Columbia Cireuit; peti-

tioner never filed a petition for review, and has

offered no explanation for its failure to do so. Peti-

tioner has not contended that the judicial review pro-

cedures specified by Section 307(b)(1) are inadequate

or ineffective. Petitioner was in business as a demoli-

tion contractor in 1973, and it has not contended that

it lacked notice of the fact that judicial review was

available. The asbestos emission standards had been

presaged by Congress in 1970 and had been proposed

The Administrator has promulgated amendments to the

asbestos emission standards. 40 Fed. Reg. 48292 (1975) ; 39 Fed.

Reg. 15396 (1974). (See also 42 Fed. Reg. 12122, 12127 (1977)

which do not involve building demolition.) These amendments

have been challenged by a timely petition for review in the District

of Columbia Circuit. National Association of Demolition Con-

tractors, Inc. v. Castle, C.A.D.C., Nos. 74-1545 and 75-2078, Al-

asbestos is unauthorized by Section 112, the Administrator has

responded that this line of challenge is foreclosed by the failure

to present new grounds that were unavailable in 1973. However

that may be, National Association of Demolition Contractors could

not affect the present case even if the District of Columbia Circuit

were to hold that the asbestos emission standards are not author-

ized by Section 112; the original standards still would have been

in effect in 1974, when petitioner demolished the building in ques-

tion, and Section 307 (b) would bar petitioner from raising the

subsequent invalidation as a defense. See pages 16-26, infra.

15

in 1971; no one should have been surprised when they

were promulgated in 1973. Petitioner does not con-

tend that the limitation on judicial review in Section

307(b) (2) is unconstitutional.

In short, petitioner does not contend in any way

that the judicial review procedures established by

Congress are inadequate, ineffective, or unconstitu-

tional. Petitioner simply argues that despite the plain

language of Section 307(b)(2), it may collaterally

attack the asbestos emission regulations in a criminal

enforcement proceeding.

n. CHALLENGES THAT COULD HAVE BEEN RAISED IMMEDIATELY AFTER

PROMULGATION OF EMISSION CONTROL REGULATIONS MAY NOT BE

URGED IN DEFENSE OF CRIMINAL ENFORCEMENT PROCEEDINGS

Congress meant what it so plainly said in Section

307(b)(2). Without exception, the courts of appeals

have coneluded that challenges that could have been

raised immediately after the promulgation of a regu-

lation may not be raised belatedly. All of these courts

recognize that Section 307(b) requires prompt review

in a single designated court. If that court should de-

termine that the Administrator erred, he could correct

Lloyd A. Fry Roofing Co. v. United States Environmental

Protection Agency, C.A. 8, No. 76-1731, decided May 11, 1977;

Friends of the Earth v. Carey, 552 F. 2d 25, 34-35 (C.A. 2), peti-

tion for a writ of certiorari pending, No. 76-1737 ; Lubrizol Corp.

v. Train, 547 F. 2d 310 (C.A. 6) ; City of Highland Park v. Train,

519 F. 2d 681 (C.A. 7), certiorari denied, 424 U.S. 927; Oljate

Chapter of the Navajo Tribe v. Train, 515 F. 2d 654, 661

(CAD.); Natural Resources Defense Council, Inc. v. E nv iron-

mental Protection Agency, 512 F. 2d 1351 (C. A. D.C.); Granite

City Steel Co. v. Environmental Protection Agency, 501 F. 2d 925

(C.A. 7) ; Plan for Arcadia, Inc. v. Anita Associates, 501 F. 2d 390,

392 (C. A. 9), certiorari denied, 419 U.S. 1034; Anaconda Co. v.

16

his mistake quickly and preserve the timetable for the

achievement of clean air; if the designated court up-

held the regulations, or if they were not challenged,

they could be enforced, and obedience would take

place free of any cloud upon the regulations’

validity.

Section 307(b) allocates judicial review to one par-

ticular court and limits the time within which to seek

review. This Court is familiar with such statutes, and

it has routinely applied them with their full force.

The Voting Rights Act of 1965 provides, for example,

that before a new voting practice or procedure may

take effect in a governmental unit covered by the Act,

it must be found non-discriminatory in both purpose

and effect in a declaratory judgment action brought in

a three-judge district court in the District of Colum-

bia (or, in the alternative, be cleared through sub-

mission to the Attorney General). The Court has

upheld and enforced this provision on numerous oc-

casions. See, e. g., United States v. Board of Super-

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. All of these have been civil cases.

The instant case is the first involving a criminal enforcement

action. The same question is pending, however, in United States v.

Big Chief, Inc., C. A. 5, No. 76-3419, which has been argued and is

awaiting disposition.

Courts applying the parallel judicial review provision of the

Federal Water Pollution Control Act also have held that review

must be had promptly, in the court of appeals, or not at all. See

Sun Enterprises, Ltd. v. Train, 532 F. 2d 280, 287 (C. A. 2); E. J.

duPont de Nemours and Co. v. Train, 528 F. 2d 1136, 1137 and n.

1, 1142 (C.A. 4), affirmed on other grounds, No. 75-978, Febru-

ary 23, 1977; Peabody Coal Co. v. Train, 518 F. 2d 940 (C.A. 6).

— ——

17

visors, No. 76-489, decided February 22, 1977; Con-

nor v. Waller, 421 U.S. 656; Perkins v. Matthews, 400

U.S. 379, 383-385. Decisions of the Attorney General

not to object to a new voting plan are not judicially

reviewable (Morris v. Gressette, No. 75-1583, decided

June 20, 1977), and decisions concerning the coverage

of the Act are absolutely unreviewable (Briscoe v.

Bell, No,. 76-60, decided June 20, 1977).

In Califano v. Sanders, No. 75-1443, decided Febru-

ary 23, 1977, the Court dealt with a statute providing

that judicial review of Social Security decisions could

be had only immediately after the final decision by the

administrative officials. A claimant sought judicial re-

view after a reopening of his case had been denied,

and the Court held that review was barred by the

statute. It explained (slip op. 9) that an “‘interpre-

tation that would allow a claimant judicial review

simply by filing—and being denied—a petition to re-

open his claim would frustrate the congressional pur-

pose, * * *, to impose a 60-day limitation upon judi-

cial review * * *. Congress’ determination so to limit

judicial review to the original decision denying benegts

is a policy choice obviously designed to forestall repe-

titive or belated litigation * * *. Our duty, of course,

is to respect that choice.”

Similarly, Swain v. Pressley, No. 75-811, decided

March 22, 1977, dealt with a statute allocating to the

District of Columbia courts the resolution of collateral

attacks upon District of Columbia criminal convic-

tions. The court of appeals had held that a defendant

should have at least one opportunity for review in an

18

Article III court, but this Court disagreed. It found

(slip op. 5) that “the statute expressly covers the situ-

ation” and held (id. at 6) that the courts must “read

it as it is written.“

Section 307 (b) (2) implements a design Congress

has used before. The model for Section 307 (b) is the

Emergency Price Control Act upheld in Yakus v.

United States, 321 U.S. 414."

The price control legislation addressed in Yakus,

like the Clean Air Amendments, required rapid and

unquestioning compliance. Review of price control

regulations was centralized in the Emergency Court

of Appeals under a statute giving that court “ex-

clusive” jurisdiction of all non-constitutional chal-

lenges to price control regulations. The Court had

no difficulty construing the statute as precluding any

attack on a regulation in a criminal case (321 U.S. at

430-431), even though the statute did not explicitly

mention criminal cases.

The difficult question presented in Yakus was one

of constitutionality; petitioners there contended that

the opportunity to obtain judicial review of adminis-

** Numerous other statutes contain similar restrictions on judi-

cial review. See, ¢.g., the Securities Exchange Act of 1934, 48 Stat.

901, as amended, 15 U.S.C. 78y; the Federal Trade Commission

Act, 38 Stat. 717, as amended, 15 U.S.C. 45 (e); the Federal Power

Act, 49 Stat. 860, as added and amended, 16 U.S.C, 8257; the Fed-

eral Aviation Act of 1958, 72 Stat. 795, 49 U.S.C. 1486 (a); the Oc-

cupational Safety and Health Act, 84 Stat. 1602, 29 U.S.C. 660. See

Brennan v. Winters Battery Manufacturing Co., 531 F. 2d 317

(C. A. 6). certiorari denied sub nom. Winters Battery Manufac-

turing Co. v. Usery,425 U.S. 991.

19

trative decisions in the Emergency Court of Appeals

was inadequate, and that in any event Congress could

not eut off defenses in a criminal case, These ques-

tions are not presented by the present case; petitioner

does not argue that it lacked an adequate opportunity

in 1973 to obtain review of the asbestos emission regu-

lations, and it does not contend that Congress lacks

the constitutional power to require courts to enforce

regulations that have escaped earlier judicial review.

The Court’s decision in Yakus demonstrates, how-

ever, that Section 307(b) is not open to serious con-

stitutional question. The Court concluded (321 U.S. at

443) that Congress possesses ample power to “fore-

close any further or other consideration of the valid-

ity of a regulation as a defense to a prosecution for

its violation“ once a defendant has had an adequate

opportunity to obtain review in a designated court

with exclusive jurisdiction. Indeed, this Court pointed

out that such bifureated review is often advantageous

to subjects of the regulation, since (id. at 444)

„ſujnlike most penal statutes and regulations whose

validity can be determined only by running the risk

of violation, * * *, the present statute provide a mode

of testing the validity of a regulation by an inde-

pendent administrative proceeding. There is no con-

stitutional requirement that that test be made in one

tribunal rather than in another, so long as there is an

opportunity to be heard * * *.”’

The statute at issue in Yakus was extraordinarily

unyielding. Once a regulation had been promulgated,

review was required to be sought immediately; no

statutory challenge to the regulation could be made

thereafter for any reason. This could have produced

harsh results where, as in Yakus, the regulation was

attacked as applied to a particular set of facts, rather

than on its face. The Clean Air Amendments, by con-

trast, give persons subject to the regulations much

greater notice and opportunity to seek review.

First, the proposed regulations are published and

become widely known through public hearings before

they are finally issued. The delay between publication

and promulgation gives interested parties ample time

to study the proposals, to decide whether they would

be aggrieved, and to prepare petitions for judicial re-

view. They have 30 days after promulgation of the

regulations within which to file petitions for review.“

Even if no petition for review is filed within 30

days, interested persons may obtain review if they

can demonstrate new grounds arising after the 30th

day; this provision ensures that changed circum-

stances will be taken into account and that no person

will be denied judicial review of a regulation that

has affected him in an unforeseeable way.

The concerns that led Congress to enact Section

307(b) are not unlike those that have led this Court

to prohibit, in contempt proceedings, challenges to the

validity of the underlying injunction. There is a time

The petition need not be complex. It would be sufficient to set

out in a single paragraph the general reasons for challenging a

regulation.

21

to litigate and a time to comply. Once an air quality

regulation, like an injunction, has gone unchallenged,

the time for further protest has passed. [Even

though the constitutionality of the Act under which

the injunction issued is challenged, disobedience * * *

subjects the violator to contempt even though his

constitutional claim might be later upheld.” Pasadena

City Board of Education v. Spangler, 427 U.S. 424,

439. See also United States v. United Mine Workers,

330 U.S. 258; Walker v. City of Birmingham, 388

U.S. 307. Congress did not attempt in Section 307(b)

to preclude constitutional challenges or attacks upon

the validity of the Clean Air Amendments. But it did

provide that once 30 days have run, or once the regu-

lations have been upheld on timely challenge,

the time for dispute has passed. The district court

must thereafter treat the regulations as if they were

embodied in the statute itself.

Moreover, it is a familiar principle that when ex-

haustion of administrative remedies is required by

statute, a defendant who neglects to exhaust may be

precluded from challenging the validity of the admin-

istrative order in a criminal case. See McGee v.

United States, 402 U.S. 479; McKart v. United States,

395 U.S. 185; Falbo v. United States, 320 U.S. 549.

McGee held that if allowing all similarly situated

persons to raise defenses for the first time in criminal

proceedings would undermine the administrative ap-

paratus, then the failure to exhaust administrative

remedies would conclusively bar an attack on the ad-

22

ministrative order, even though no statute explicitly

required such preclusion.”

It does not take much imagination to see that al-

lowing all persons situated similarly to petitioner to

attack the Administrator’s regulations at this late

date would undermine the adminisrative program.

It would lead to disparate results in different courts,

frustrating the intent of Congress to have a uniform

national rule. It would delay the process of cleaning

up the air by casting doubt upon the validity of out-

standing regulations. N

Petitioner does not discuss any of these principles.

It relies instead on Leedom v. Kyne, 358 U. S. 184,

See Moore v. City of East Cleveland, No. 75-6289, decided

May 31, 1977, plurality slip op. 3 n. 5: Cases foreclosing noncon-

stitutional defenses in criminal prosecutions “did so pursuant to

statutes that implicitly or explicitly mandated such a hold-

ing. * - * Because of the statutes the defendants were on notice

that failure to pursue available administrative relief might result

in forfeiture of a defense in an enforcement proceeding.” Section

307 (b) (2) put petitioner on notice that failure to seek prompt

judicial review of the asbestos regulations would result in “for-

feiture of a defense” in any later enforcement proceeding. Sce also

Slip op. 9 (Burger, C.J., dissenting) : “The applicability of the

exhaustion principle to bar challenges to the legality of prosecu-

tions is established, even where * * * substantial felony penalties

are at stake.”

See also Whitney National Bank v. Bank of New Orleans, 379

US. 411, 420-422, holding that when Congress has provided for

review of administrative orders in the courts of appeals, that is

the exclusive judicial remedy even in the absence of an express

exclusivity provision. Any other rule would breed duplication,

delay, and the application of conflicting standards. Cf. Jnvestment

Company Institute v. Board of Governors, 551 F. 2d 1270, 1278

1282 (C.A.D.C.).

23

for the proposition that administrative orders always

are open to judicial review. Leedom does not support

this proposition. Leedom considered the problem of

judicial review under the National Labor Relations

Act; the Court interpreted the ambiguous require-

ment of a final“ order as a precondition to judicial

review (see 29 U.S.C. 160(f)) liberally in order to

avoid the prospect that a concededly invalid admin-

istrative order would escape any opportunity for

judicial review (358 U.S. at 190-191). Leedom does

not stand for a broad principle of reviewability at all

times and in all courts.“ The Clean Air Amendments

do not leave petitioner without a forum in which to

obtain judicial review of the asbestos regulations;

petitioner neglected the adequate opportunity for re-

view under Section 307(b)(1). Petitioner’s difficul-

ties stem not from congressional oversight but from

its own neglect. Leedom has nothing to do with the

question whether a party that has failed to utilize an

available and exclusive judicial remedy may subse-

quently raise its arguments as a defense in a criminal

prosecution.

Petitioner also maintains that this case may be dis-

tinguished from Yakus because Yakus dealt with an

attack upon a regulation as applied, whereas peti-

See Briscoe v. Bell, supra, slip op. 9 W. 18. This Court has ex-

plained on several occasions that Leedom turned upon the par-

ticular statute and facts presented by that case. See, e. g., Boire v.

Greyhound Corp., 376 U.S. 473, 480-482; Brotherhood of Railway

and Steamship Clerks v. Association for the Benefit of Noncontract

Employees, 380 U.S. 650, 659-660.

24

tioner has attacked the regulation on its face. The

distinction is insubstantial. Although the Court did

not have occasion to deal in Yakus with a facial at-

tack, other cases relied on Yakus to foreclose facial at-

tacks. See Bowles v. Willingham, 321 U.S. 503, 521;

Case v. Bowles 327 U.S. 92, 98; Woods v. Hills, 334

U.S. 210, 213-214.

If any distinction can be drawn between challenges

toa regulation on its face and to a regulation as ap-

plied—and neither Section 307(b) nor its legislative

history draws such a distinction—then preclusion of

review is more, not less, appropriate when a regula-

tion is attacked on its face. After all, facial defects are

knowable the moment a regulation is promulgated.

The consequences of a regulation as applied may be

unknowable for some time, however; in Yakus itself

the regulation was challenged only because it had the

effect of requiring particular sellers to operate at a

loss. If, as Yakus held, Congress may foreclose argu-

ments that might have been difficult to anticipate and

raise immediately, and that pertain to individual sub-

jects of regulation, then surely Congress may foreclose

arguments that appear at once on the face of the regu-

lation and pertain equally to every subject of that

regulation.“

Petitioner contends (Br. 12 frained

ing that Congress could Sa — the —

of a regulation. The statement to which petitioner apparently

refers (321 U.S. at 446-447) is: “We have no occasion to decide

whether one charged with criminal violation of a duly promul-

gated price control regulation may defend on the

rice egul ground that th

regulation is unconstitutional on its face” (emphasis added). Peti.

25

We submit that Section 307(b)(2) should be con-

strued in accord with its literal terms. The statute

preserves a full opportunity for judicial review at the

proper time and in the proper court. Judicial review

under Section 307(b)(1) enables persons affected by

the regulations to know promptly whether the regula-

tions are valid, and it enables the courts to detect any

errors promptly so that attainment of the congres-

sional goal of clean air will not needlessly be delayed.

Section 307(b), by requiring parties to raise challenges

promptly or not at all, imparts to the regulations a

tioner does not contend that the asbestos emission standard is un-

constitutional on its face; moreover, the reservation of that point

in Yakus was attributable to the statute under consideration, which

created concurrent jurisdiction to consider constitutional questions

in the Emergency Court of Appeals and the enforcement courts

(see 321 U.S, at 430-431). Nothing in the Clean Air Amendments

or their legislative history indicates that Congress contemplated

concurrent jurisdiction on any question, statutory or constitutional.

Review of constitutional questions may be had under Section

307 (b) (1) and consequently, under the terms of Section

307 (b) (2), may not be had in enforcement actions. See Lloyd A.

Fry Roofing Co., supra; Friends of the Earth, supra.

Another passage in Yakus states that the Court does not con-

sider “whether one who is forced to trial and convicted of a viola-

tion of a regulation, while diligently seeking determination of it“

validity by the statutory procedure, may thus be deprived of the

defense that the regulation is invalid” (321 U.S. at 447). This

passage refers to the possibility that a subject of regulation might

seek timely judicial review in the proper and exclusive forum, then

be put to trial before the court has passed upon the properly pres-

sented challenge. Petitioner, however, did not seek timely review

of the asbestos regulation, and this case does not present whatever

problems there may be in bringing a criminal prosecution before

the District of Columbia Circuit has resolved a timely challenge

to a nationwide emissions standard.

necessary measure of authority so that competitive ad-

justments can be made and the need for adversarial

enforcement can be held to a minimum. All affected

parties will be subject to the same competitive condi-

tions.“ The judicial review provisions are a product of

careful congressional design, and they preclude peti-

tioner from raising in this case the defense that the

asbestos emission standards are invalid.

II

SECTION 112 AUTHORIZES THE ADMINISTRATOR TO CON-

TROL EMISSIONS BY ISSUING LIMITATIONS UPON PER-

MISSIBLE WORK PRACTICES INSTEAD OF, OR IN ADDITION

TO, NUMERICAL LIMITATIONS UPON EMISSIONS

We have argued above that petitioner is not en-

titled to defend this crim*~al proceeding by arguing

that the asbestos emission regulations are invalid. If

the Court agrees with this argument, it should affirm

the judgment of the court of appeals. If the Court

should conclude, however, that Section 307 (b) (2) does

not bar review in this case of the asbestos regulations,

then it should vacate the judgment of the court of

Enterprises have an important interest in the assurance that

none of their competitors will be subject to less costly regulations.

This interest also leads them to take a hand in enforcing the regu-

lations. In United States v. Big Chief, Inc., 7 E. R. C. 1840( E. D.

La.), appeal pending, C. A. 5, No 76-8419, one of the prosecution’s

important witnesses was an unsuccessful bidder for a demolition

contract. In preparing his bid, he had considered the costs of com-

plying with the asbestos emission standard, and he suspected that

the prevailing bidder had not. He visited the demolition site to

observe whether the prevailing contractor was complying with the

regulation and discovered the lack of compliance.

27

appeals and remand for further consideration of peti-

tioner’s argument (Br. 14-19) that the asbestos regu-

lations are not authorized by the statute. The court

of appeals did not rule on this argument in light of

its conclusion that Section 307(b)(2) precludes re-

view of the regulations in this proceeding, and we

submit that this Court should not consider their

validity in advance of a decision by the court of

appeals. Out of an abundance of caution, however, we

present a brief survey of the arguments supporting

the validity of the asbestos regulations.

We have discussed the structure and purpose of

Section 112 at pages 11-12, supra. That Section re-

quires the Administrator to prescribe regulations that

provide an “ample margin of safety” to protect the

public health from harm caused by the emissions of

especially hazardous air pollutants. Airborne asbestos

causes cancer and there is no known level of safe

exposure (38 Fed. Reg. 8820).

Congress contemplated that the Administrator

would regulate asbestos pursuant to Section 112.“ But

the Administrator faced formidable obstacles to effec-

tive regulation. Devices capable of measuring the

concentration of asbestos in the air have been devel-

oped only recently, so that there is no way to know

whether the amount present in the air has increased

or decreased in recent years (38 Fed. Reg. 8820).

More importantly, there is no known way to measure

1® See note 7, supra. See also 116 Cong. Rec. 42381-42384 (1970)

(statement of Senator Muskie, the bill’s floor manager).

the amount of asbestos emitted from stationary

sources (ibid.), and when buildings are being de-

molished there is no known way to capture or filter

the asbestos that may be liberated from the insulation.

Numerical limitations on asbestos emissions from

the demolition of buildings therefore would have been

meaningless and unenforceable. Still, the Administra-

tor was under an explicit congressional mandate to

restrict the emission of asbestos. The Administrator

therefore initially proposed to prohibit any activity

that resulted in “visible” liberation of asbestos into

the air (36 Fed. Reg. 23239, 23242). This approach

was strongly criticized, however, because it would

have forbidden “repair or demolition in many situa-

tions, since it would be impracticable, if not impos-

sible, to do such work without creating visible emis-

sions” (38 Fed. Reg. 8821). The Administrator there-

fore concluded that the best approach for demolition

activities was to prohibit all emissions that were not

held to a minimum by the use of “work practices“

caleulated to reduce emissions. The regulations re-

quired demolition contractors to wet and remove

friable asbestos before demolishing the building, and

to keep the building debris (which may contain addi-

tional asbestos) wet during demolition. The procedure

is simple, effective, and relatively inexpensive.

The Administrator’s actions are consistent with

Section 112. That Section requires the Administrator

to promulgate “emission standards,” and it does not

specify whether the standards shall set numerical

limitations or state work practices.”

Petitioner argues that “emission standards’’ may

include only numerical limitations, because Section

112(b)(2) provides that the Administrator shall

“issue information on pollution control techniques for

air pollutants subject to the provisions of this sec-

tion.” This shows, petitioner argues, that Congress in-

tended to draw a distinction between numerical limi-

* The interpretation of Section 112 that we urge here has been

upheld by the district court in United States v. Big Chief, Inc.,

supra. While erroneously reaching the merits in our view (see

point I, supra), that court concluded (7 E.R.C. at 1842-1843)

that “[t]here appears to be no justification for restrictively defin-

ing ‘emission standard’ so as to exclude standards such as this,

which undeniably control the amount of ambient emissions. It is

most significant that Congress elected not to limit the term to

numerical standards.” The district court rejected arguments based

on an analogy to Sections 111, 202, and 211 of the amended Act,

reasoning that each of those sections requires the Administrator to

consider economic and technological difficulties in achieving reduc-

tion of pollution; Congress did not require the Administrator to

consider cost or technological problems in setting standards under

Section 112 for the reduction of the most hazardous pollutants.

One district court has suggested that Section 112 does not

authorize the asbestos emission regulations. See U/nited States v.

National Wrecking Co., N. D. III., No. 74 CR 755, decided Decem-

ber 20, 1974; United States v. Nardi Wrecking Co., N. D. III., No.

74 CR 756, decided January 2, 1975; United States v. Harvey

Wrecking Co., N.D. III., No. 74 CR 758, decided January 7, 1975;

United States v. Brandenburg Demolition, Inc., N. D. III., No. 74

CR 757, decided January 31, 1975. In each case, however, the in-

dictment was dismissed for failure to allege that asbestos was

emitted as a result of the demolition, and the district court’s brief

remarks about Section 112 were dicta.

30

tations (which could be the subject of “emission stand-

ards’) and “pollution control techniques” (which

could not). The argument is excessively formalistic.

The asbestos control regulations devised by the Ad-

ministrator prohibit demolition altogether—which

achieves zero emissions—unless the prescribed emis-

sion control practice is adopted. Congress was

concerned not with the form of the regulation but

with its results. Section 112 required the Administra-

tor to do what was necessary to achieve a level of

emissions “which in his judgment provides an ample

margin of safety to protect the public health.” The

asbestos emission regulations do so in an entirely

practical way.

The legislative history of Section 112 demonstrates

that Congress authorized whatever manner of con-

trols on hazardous air pollutants should prove neces-

sary to protect the public health. The bill passed by

the House directed the Administrator to promulgate

regulations establishing “standards with respect to

emissions“ which were to provide that no new sources

of hazardous air pollutants “shall be constructed or

operated, except where (and subject to such condi-

tions as he deems necessary and appropriate) the

[Administrator] makes a specific exemption.” H.R.

17255, 91st Cong., 2d Sess., Section 5 (1970).

The Senate amended the House bill, subjecting new

stationary sources and hazardous air pollutants to

31

different programs of control.“ It required the Ad-

ministrator to publish a list of hazardous air pollu-

tants, to propose a prohibition on emissions of such

pollutants, and, after a public hearing, to promulgate

the prohibition unless the hearing showed that less

drastic measures would suffice. The Senate committee

report emphasized that “there should be no gaps in

control activities pertaining to stationary source emis-

sions that pose any significant danger to public health

or welfare.“ S. Rep. No. 91-1196, supra, at 20.

The Conference Committee adopted the broad out-

lines of the Senate proposal, and the report of the

conferees warned that polluters that were not able to

comply with standards that would produce an ample

margin of safety to assure public health protection”

would be subject to abatement actions. See H.R. Conf.

Rep. No. 91-1783, 91st Cong., 2d Sess. 46 (1970).

None of the committee reports, and none of the floor

debates, indicates that numerical emission limits are

the only way that the Adminstrator could achieve the

important objective of limiting the emission of espe-

cially hazardous pollutants. There would be no reason

consistent with the statutory scheme for creating or

implying such a restriction, especially when the only

effective alternative to a work practice rule would be

an absolute prohibition on the offending activity.

21 It is not necessary to discuss here the legislative history of the

new stationary source rules, which were accepted by the House and

became Section 111 of the amended Act. |

32

To the extent there is any doubt about the meaning

of the Amendments, this Court should defer to the

consistent construction of them by the Administrator,

who is charged with their superintendence. The Court

has “accorded great deference to the Administrator’s

construction of the Clean Air Act.” Union Electric Co.

v. Environmental Protection Agency, supra, 427 U.S.

at 256; see also Train v. Natural Resources Defense

Council, Inc., supra, 421 U.S. at 75, 87. The Adminis-

trator’s construction of Section 112 is consistent, rea-

sonable, and necessary to fulfill the purpose of the

Clean Air Amendments.”

** Petitioner apparently contends (Br. 16-17) that the Admin-

istrator’s interpretation of Section 112 has not been consistent be-

cause, in 1974, Administrator Train asked the President to submit

to Congress legislation that would explicitly authorize “work

practice” rules of the sort involved here. It is not inconsistent, how-

ever, for an administrative agency to construe an i

statute in a particular way while simultaneously seeking clarifica-

tion from Congress, Cf. United States v. Southwestern Cable Co.,

392 U.S. 157, 170-171. As Administrator Train pointed out in a

letter of February 3, 1975, to the Chairman of the Senate Commit-

tee on Public Works, the Agency was simply “requesting Congres-

sional affirmation of [its] authority to set design, equipment, or

practice standards under those sections where the limitations of

measurement technology make an emission limitation approach

infeasible or impractical.” (The text of this letter is set out in

Appendix C, infra.)

Congress has been sensitive to the Administrator’s request. The

Senate has passed a bill (S. 252) that would confirm the Agency’s

authority to establish work practices when necessary to limit emis-

sions. The committee report (S. Rep. No, 95-127, 95th Cong., Ist

Sess. 44 (1977)) states that: “Asbestos is an example which has

been demonstrated as requiring other than a direct numerical limi-

tation. * * Work practice and other design characteristics may

be the only means available for controlling such pollutants. * * *

[The provisions of this bill] would fully authorize the present

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

Dante. M. FRIEDMAN,

Acting Solicitor General.“

James W. MoorMan,

Acting Assistant Attorney General.

Frank H. EasTersroox,

Assistant to the Solicitor General.

Raymonp N. ZaGone,

Patrick A. MULLoy,

Joun J. ZIMMERMAN,

Attorneys.

G. WU FRick,

General Counsel,

Geratp K. GLEAsON,

Deputy Associate General Counsel,

Ronatp S. NAVEEN,

Attorney, ö

Environmental Protection Agency.

June 1977.

regulations governing asbestos.” See also 123 Cong. Rec.

— (daily ed., June 8, 107 7) (statement of Senator Muskie). The

the bills have been sent to a conference committee. If a bill in-

the Senate provision should be passed, it would pro-

vide additional support for our position that the asbestos emission

regulations were authorized by the 1970 Amendments. Cf. Cali-

fano v. Sanders, supra, slip op. 5-8 (holding that a 1976 statute

demonstrated that the Administrative Procedure Act had not been

designed as a grant of federal jurisdiction). We will promptly

advise the Court if a clarifying amendment is enacted.

* The Solicitor General is disqualified in this case.

APPENDIX A

United States Environmental Protection Agency

Order No: EPA 5-74-A-2

In THE MATTER oF ADAMO WRECKING COMPANY,

11805 Gratior AVENUE, Derroit, MICHIGAN

Order

The following ORDER is issued this date pursuant

to Section 113(a)(3) of the Clean Air Act, as

amended, 42 U.S.C. § 1857 C-8(a) (3).

On October 24, -1973, a United States Environ-

mental Protection Agency inspector visited a demoli-

tion operation conducted by Adamo Wrecking Com-

pany at 1701-07 Seward in Detroit, Michigan. The

building being demolished was a four story brick

apartment building containing more than four (4)

units. While there, demolition procedures were ob-

served and a sample of dry insulating material cover-

ing some piping was obtained.

This sample was scientifically analyzed and was

found to contain friable chrysotile asbestos. That

sample was taken from a section of insulated four

inch pipe (approximate size) in the basement and on

the southeast corner of the structure. Also, demolition

procedures observed at the site were found to be con-

trary to the procedures detailed in regulations pub-

lished in the April 6, 1973, Federal Register (38 F.R.

8829), specifically §61.22(d)(2)(i). Further, no

notice of intention to demolish was provided to the

(85)

United States Environmental Protection Agence

required by — (i). 8

Therefore, after a thorough investigation of all

relevant facts, including the seriousness of the afore-

mentioned violation of the regulations promulgated

oe pursuant to § 112 of the Clean

r ct, as amended, and any good faith efforts to

comply with said regulations, it has been determined

that immediate compliance in accordance with the

provisions hereinafter set forth is reasonable.

Ordered:

That the Adamo Wrecking Com , 11805 i

Avenue, Detroit, Michigan, with — to the —

tion operation conducted by the company at 1701-07

Seward in Detroit, Michigan (if such operation is

still in progress), and with regard to all future

demolition operations conducted by the company and

subject to the standards published in the April 6,

1973, Federal Register at page 8829; shall adhere to

all applicable standards enumerated in the aforemen-

tioned Federal Register, and especially § 61.22(d) (2)

(1) and §61.22(d)(1), with one exception, that

§ 61.22(d) (1) shall be modified to required notice of

intention to demolish to the United States Environ-

mental Protection Agency only five (5) days prior to

commencement of such demolition.

Dated 12/18/73.

Francis T. Mayo,

Regional Administrator.

APPENDIX B

Apamo WreckineG Co.,

Demolition engineers: Licensed, Bonded, Insured ;

11805 Gratiot Ave., Telephone 372-4033—Member of:

Detroit Demolition Contractors Assn., Inc.

Detroit, Michigan 48213, December 26, 1973.

Attn: Mr. Francis T. Mayo,

United States Environmental Protection Agency,

Region V,

One North Wacker Drive,

Chicago, Illinois 60606

Dear Sms: This will acknowledge receipt of your

letter of December 18, 1973. Please be advised that a

visible examination of the structure located at 1701-

07 Seward, Detroit, Michigan had been made prior

to commencement of demolition, and no Friable as-

bestos material was observed.

Needless to say, my company did not knowingly

violate any of your regulations or orders. We deeply

regret that a alleged violation was found to occur at

the above site. It is our intention to fully comply with

your rules and regulations as we know them.

In keeping with the spirit and letter of your rules

and regulations, I am enclosing herewith a list of

buildings, which should be in the process of demoli-

tion within the next thirty (30) days, and contem-

plated completion within ninety (90) days from the

date hereof. To the best of our knowledge, there are

no friable asbestos materials within said buildings.

These structures are to be machine wrecked in ac-

cordance with the ordinances of the City of Detroit.

(37)

I trust that the above meets with the intent of your

letter of December 18, 1973. However, if any further

information or cooperation is desired, please do not

hesitate to contact us as our intention is to give full

cooperation to your agency.

Very truly yours,

Abauo Wreckina Company

: Mr. Jonx T. Apamo.

Owner: City of Detroit, Department of Public

Works, Ninth Floor, Cadillac Tower, Detroit, Mich.

Demolition of Buildings Revenue Sharing Pro-

gram, Group 73-1 (RS). Contract No. PW-6263.

2909 Blaine 4 Story Brick—60 X 75 feet

2200-16 Brush 3 Story Masonry—90 X 100 feet

3207 Blaine 3½ Story Brick—70 X 100 feet

2612 Carter (8751 414 Story Commercial Ma-

Linwood) sonry—100 X 110 feet

8745 Dumbarton 414 Story Brick—115 X 145 feet

2707-37 Gladstone 4 Story Masonry—80 X 170 feet

2670 Gladstone 3½ Story Masonry—90 X 125

feet

5415 Joy Road 5 Story Brick—80 X 100 feet

11842 LaSalle 3½ Story Brick—65 X 130 feet

7710-20 Lawton 2% Story Masonry—70 X 90

feet

105-13 Smith 3 Story Masonry—60 X 110 feet

Owner: John T. Adamo & Paul Garavagli

aglia, DBA/

Adamo Wrecking Company, 11805 Gratiot Avenue,

Detroit, Michigan.

Dumbarton Park Apartments, 8550 Dumbarton,

Detroit, Michigan. Project No. 04444026.

APPENDIX C

LETTER FROM ENVIRONMENTAL Protection ANC Ab-

MINISTRATOR TO SENATE Pusiic Works CoMMITTEE

CHAIRMAN SvupportiNG Proposep AMENDMENTS TO

THE CLAN Am Act Datep Fesruary 3, 1975

Dear Mr. CHARMAN: I would like to take this op-

portunity to express my support for the proposed

amendments to the Clean Air Act submitted by the

President on January 30, 1975, and briefly outline the

Environmental Protection Agency’s views on the need

for their enactment. The environmental, energy and

economic problems facing our society are interde-

pendent and require complementary solutions and

goals. I believe that the proposed amendments would

reinforce our Nation’s commitment to achieve and

maintain air quality capable of protecting the health

and welfare of our citizens while taking cognizance

of the serious economic and energy-related problems

which must be solved. The amendment addressing

significant deterioration, however, is one of several

possible approaches in dealing with this problem.

Some of the proposed amendments are new, while

others were submitted last year but failed to receive

consideration.

* * * * *

4. New Source and Hazardous Emission Equipment

Standards

The Environmental Protection Agency has pre-

scribed a number of emission standards as Section 111

new source performance standards and Section 112

(39)

40

hazardous emission standards, and in a few instances,

prescribed design, equipment, or operational stand-

ards under these sections where emission limitations

are not practical. An example of the latter approach

is the standard prescribing procedures on building

demolition for the purpose of controlling emissions

of asbestos to the atmosphere. We are requesting Con-

gressional affirmation of our authority to set design,

equipment, or practice standards under those sections

where the limitations of measurement technology

make an emission limitation approach infeasible or or

impractical. This authority would be used only in ex-

ceptional situations and would be subject to public

participation under existing law. The amendment also

directs the Administrator to consider non-air quality

environmental impacts and energy requirements in

setting standards of performance.

* * * * *

Sincerely yours,

/s/Russect E. Tray,

Administrator.

Honorable JenNtnes RAxN Doren,

Chairman,

Committee on Public Works,

United States Senate,

Washington, D.C. 20510

US COVERNMEET PRINTING Orrice torr