Supplemental Memorandum — Adamo Wrecking Co. v. United States

—

FOR ARGUMENT

% Ripe De

Br #3, . . E ’ 7’ .

No. 76-911

In the Supreme Court of the Mnited

OcToBER TERM, 1977

ADAMO WRECKING CO., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

SUPPLEMENTAL MEMORANDUM FOR THE

UNITED STATES

DaANteL M. FRIEDMAN,

Acting Solicitor General,

Department of Justice,

Washington, D.C. 20530.

States

In the Supreme Court of the United States

OcTOBER TERM, 1977

No. 76-911

ADAMO WRECKING CO., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

SUPPLEMENTAL MEMORANDUM FOR THE

UNITED STATES

On August 7, 1977, the President signed the Clean Air

Act Amendments of 1977, Pub. L. 95-95, 91 Stat. 685.

These amendments make it clear that the Administrator

of the Environmental Protection Agency has the authority

to control hazardous air pollutants by promulgating work

practice standards as well as by issuing numerical

limitations upon emissions.' Section 110 of the amend-

ments provides:

‘Section 30S(c) of the amendments also makes some changes in

Section 307(b) of the Act. which governs judicial review. Section

305 cK 3) extends from 30 to 60 days the time within which to seck

review in the District of Columbia Circuit. These changes do not

affect the present case.

(1)

2

Section 112 of the Clean Air Act is amended by

adding the following new subsection at the end

thereof:

“(eX 1) For purposes of this section, if in the judg-

ment of the Administrator, it is not feasible to

prescribe or enforce an emission standard for control

of a hazardous air pollutant or pollutants, he may

instead promulgate a design, equipment, work prac-

tice, or operational standard, or combination thereof,

which in his judgment is adequate to protect the

public health from such pollutant or pollutants with

an ample margin of safety. In the event the Admin-

istrator promulgates a design or equipment standard

under this subsection, he shall include as part of such

standard such requirements as will assure the proper

operation and maintenance of any such element of

design or equipment.

“(2) For the purpose of this subsection, the phrase

‘not feasible to prescribe or enforce an emission

standard’ means any situation in which the Admin-

istrator determines that (A) a hazardous pollutant

or pollutants cannot be emitted through a convey-

ance designed and constructed to emit or capture

such pollutant, or that any requirement for, or use of,

such a conveyance would be inconsistent with any

Federal, State, or local law, or (B) the application of

measurement methodology to a particular class of

sources is not practicable due to technological or

economic limitations.

“(3) If after notice and opportunity for public

hearing, any person establishes to the satisfaction of

the Administrator that an alternative means of emis-

sion limitation will achieve a reduction in emissions

3

of any air pollutant at least equivalent to the reduc-

tion in emissions of such air pollutant achieved under

the requirements of paragraph (1), the Administrator

shall permit the use of such alternative by the source

for purposes of compliance with this section with

respect to such pollutant.

“(4) Any standard promulgated under paragraph

(1) shall be promulgated in terms of an emission

standard whenever it becomes feasible to promulgate

and enforce such standard in such terms.”.

We have discussed at pages 32-33 and note 22 of our

brief the legislative history of this provision in the Senate.

The Conference Committee added only a few comments

(H.R. Conf. Rep.. No. 95-564, 95th Cong., Ist Sess. 131-

132 (1977)):

HAZARDOUS DESIGN STANDARDS

House bill

No comparable provision.

Senate amendmen:

Amends section |12 of existing law to specify de-

sign, equipment, or operational standards for the con-

trol of a source of hazardous emissions, where an

emission limitation is not possible or feasible to

measure hazardous emissions or to capture them

through appropriate devices for control.

Conference agreement

The House concurs in the Senate provision with

an amendment to clarify that the Administrator may

specify a hazardous design standard if the emission

of hazardous pollutants through a conveyance de-

signed to emit or capture such pollutants would be

4

inconsistent with any Federal, State or local law and

minor clarifying modification in the language.

The language in this section with respect to tech-

nological or economic limitations defines what is not

feasible only for purpose of prescription or enforce-

ment by EPA.

For the reasons discussed in our main brief, we believe

that the Administrator always has had the authority to

istrator’s authority? We submit that they demonstrate

that the work practice regulation that petitioner is charged

to have violated was authorized by statute and that the

indictment therefore is proper even if, contrary to our

submission, the Court should conclude that petitioner's

arguments are maintainable at this late date.

legislative history discussed at Br. 32-33 n. 22 looks in the contrary

5

For these reasons. as well as the reasons discussed in

our opening brief. it is respectfully submitted that the

judgment of the court of appeals should be affirmed.

Dantet M. FRIEDMAN,

Acting Solicitor General.*

AuGust 1977.

*The Solicitor General ts disqualified im this case.