# Respondents Brief — Adamo Wrecking Co. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1694%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1978 - **Citation:** 434 U.S. 275 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1694%3A5. Public record. Not legal advice.