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

Supreme Court of the Gnited States

OctToser Term, 1976.

No. 76-911

ADAMO WRECKING CO.,

Petitioner,

vs.

UNITED STATES OF AMERICA.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT.

REPLY BRIEF FOR PETITIONER.

Burton Y. WEITZENFELD,

ARTHUR L. KLEIN,

STANLEY M. LIPNICK,

75th Floor—Sears Tower,

Chicago, Illinois 60606,

Counsel for Petitioner.

ARNSTEIN, GLUCK, WEITZENFELD,

& MINow,

Of Counsel.

Gunthorp-Warren Printing Company, Chicago e Financial 66565

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TABLE OF CONTENTS.

PAGE

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(PPT OTT TTT TTT TTTTTTTTTTrTrrT Trier 2

SUE Sb Ge Obe Seb ebOLreccécdeossocccoeenes 5

TABLE OF CITATIONS.

Cases.

Leedom v. Kyne, 358 U. S. 184 (1958) ............ 4

Manges v. Camp, 474 F. 2d 97 (Sth Cir. 1973) ...... 4

Perkins v. Matthews, 400 U. S. 379 (1971) ......... 3

Statutes.

Clean Air Act, as amended:

Section 112, 42 U. S. C. § 1857c-7 .......... 2, 3,4, 5

Section 113, 42 U. S. C. § 1857c-8 ............ 2

Section 307, 42 U. S. C. § 1857h-5 ........... 1,3,4

Supreme Court of the United States

OcToBerR TERM, 1976.

No. 76-911.

ADAMO WRECKING CO.,

Petitioner,

vs.

UNITED STATES OF AMERICA.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT.

REPLY BRIEF FOR PETITIONE’.

STATEMENT.

The Government's brief is laced with assertions of facts out-

side the record, but reply to most is unnecessary. Petitioner is,

however, constrained to point out that its challenge to the suf-

ficiency of the indictment was raised, even before pleading, as a

question of law. There was no presentation to, or resolution

by the trial court of questions of fact. It was for this reason,

not as a concession, that Petitioner did not contest below the

adequacy and effectiveness of the statutory review afforded by

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

The Government's brief repeatedly asserts, as if it were a

matter of undisputed fact, that the statutory remedy is adequate

and effective. The record, however, does not support the Gov-

ernment’s notion that EPA publications in the fine print of

2

the Federal Register, and the additional publicity, if any, asso-

ciated with its public hearing procedures, resulted in actual

notice to Petitioner and other demolition contractors within

the 30 days provided for seeking statutory review of EPA's

final regulation. Nor does the record suggest that Petitioner

had any reason to search for an EPA regulation which might

adversely affect it.

Since the adequacy and effectiveness of the statutory remedy

against unlawful EPA action was not litigated below and

is neither shown by the record nor conceded, Petitioner believes

it is appropriate to assume that fact, but only arguendo. The

argument which follows is presented on that limited assumption.

ARGUMENT.

The indictment (App. 1)’ alleges that Petitioner demolished

a building by a work practice other than the one mandated by

an EPA regulation, and charges violation of Section 112

(c)(1)(B) of the Clean Air Act, as amended, 42 U. S. C.

§ 1857c-7(c)(1)(B).* Although the Government seeks an ad-

judication that Petitioner is a criminal for having violated this

section of the Act, its brief completely ignores the section's

Section 112(c)(1)(B) prohibits violation of an “emission

standard.” The trial court held (Pet. App. A35-A44) that a

work practice rule, such as EPA had promulgated, is not the

same thing as an emission standard. He therefore found the

indictment deficient, because violation of an “emission stand-

ard” is an explicit essential element of the offense.

1. For convenience, the term “indictment” denotes Count I of

the superseding indictment, since neither Count II of that indictment

nor any count of the original indictment are before the Court on

this appeal.

2. A knowing violation of Section 112(c) is made criminal by

me of the Act, 42 U. S. C. § 1857c-

c .

_———s

——_—!

3

Petitioner’s opening brief demonstrates that the trial court

was absolutely right to view an emission standard and a work

practice rule as being two different things. Petitioner would now

invite the Court’s attention to the Government’s Supplemental

Memorandum advising of and commenting upon recent amend-

ments to Section 112. Even the Government now admits (Supp.

Memo. p. 4, n. 2), in so many words, that the recent amend-

ments make it clear that work practices and emission standards

are “distinct methods of regulation.”

The parties are thus in complete agreement that an emission

standard and a work practice are two distinct and different

things. How then can it be said that Petitioner committed the

crime of violating an “emission standard” by allegedly failing

to follow a work practice?

There is no need to seek a further Court of Appeals opinion,

as the Government seems to suggest at page 27 of its brief. The

record is adequate to enable this Court to decide whether the

indictment is legally sufficient. It should, therefore, decide that

question in the interest of judicial economy. See, Perkins v.

Matthews, 400 U. S. 379, 386-7 (1971).

The Government does not deny and cannot deny the trial

court’s jurisdiction to decide whether the indictment alleged the

essential elements of the crime, and that is all the trial court

did. In fact, he carefully refrained from holding the work prac-

tice rule invalid, noting that it “. . . may be duly authorized,

but it is not [an emission] standard” (Pet. App. A41, n. 40).

No case cited by the Government, and none of which Petitioner

is aware holds that a withdrawal provision such as Section

307(b)(2), 42 U. S. C. § 1857h-5(b)(2), precludes a trial

court from examining an administrative regulation on its face

to ascertain whether it is the kind of regulation specified in a

criminal statute. The Court of Appeals’ decision amounts to a

holding that the trial court was required to make Petitioner a

>

4

criminal for engaging in conduct which Congress did not make

a crime. That decision is wrong, and should be reversed.

Furthermore, the Court of Appeals was wrong and the trial

court was right, even if the trial court’s ruling should be viewed

as a form of judicial review. Section 307 of the Clean Air

Act does not mean, and cannot mean, that the Environmental

Protection Agency, by invoking the authority of Section 112,

can order the citizens of this country to do anything it pleases

on pain of criminal conviction, provided only that no one

contests within 30 days.

As shown in Petitioner’s opening brief, Leedom v. Kyne,

358 U. S. 184, 188 (1958), supports the proposition that the

term “judicial review” in Section 307(b)(2) should be con-

strued to mean judicial review of agency action which is at

least facially within the scope of agency authority. Even the

cases cited by the Government in its grudging discussion of

Leedom recognize the continued vitality of its holding.

Manges v. Camp, 474 F. 2d 97, 99 (Sth Cir. 1973), was

completely ignored by the Court of Appeals, just as it is now

completely ignored by the Government. However, it is squarely

in point here. There the court held that a preclusive provision

indistinguishable from Section 307(b)(2) did not foreclose a

belated, “wrong court” attack upon a facially lawless agency

order. Indeed, the only difference between Manves and this

case is that here the trial court was called upon for affirmative

criminal enforcement of the facially unauthorized agency order.

Hence, on the authority of both Leedom and Manges, the

trial court’s examination of the regulation was not precluded

by Section 307(5)(2) of the Act.

To paraphrase the conclusion of note 4 of the Government's

Supplemental Memorandum, prior to the recent amendment

nothing in the legislative history of the Act suggested a Con-

gressional belief that EPA was authorized by Section 112 to

promulgate work practices instead of emission standards. The

Government seems to suggest, at pages 26 to 32 of its brief, that

5

it was wise and beneficent for EPA to adopt the expedient of

usurping authority to promulgate a work practice rule, instead of

the emission standard Section 112 required, until such time as it

could persuade Congress. to amend the Act. If ours were a gov-

ernment of men, this position might have some merit. However,

ours is a government of law, so the Government's position is

unsound on its face.

CONCLUSION.

For each and all of the foregoing reasons, and those set forth

in Petitioner's opening brief, the Court of Appeals’ decision

should be reversed, and the cause should be remanded with

directions to reinstate and affirm the trial court's judgment.

Respectfully submitted,

BURTON Y. WEITZENFELD,

ARTHUR L. KLEIN,

STANLEY M. LIPNICK,

75th Floor—Sears Tower,

Chicago, Illinois 60606,

Counsel for Petitioner.

ARNSTEIN, GLUCK, WEITZENFELD,

& MINow,

Of Counsel.