Respondents Brief — Harrison v. PPG Industries, Inc.

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Supreme Court, U.S.

yi. 2

DEC 22 i979

IN THE MICHAEL RODAK, JR., CLERK

Siupreuw Court of the United shorn

OCTOBER TERM, 1979

FOR ARGUMENT

No. 78-1918

ADLENE HARRISON, Regional Administrator, and

DouGLAS COSTLE, Administrator of the

Environmental Protection Agency,

. Petitioners,

PPG INDUSTRIES, INC. and Conoco, INC.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF FOR RESPONDENTS

Of Counsel:

CLEARY, GOTTLIEB, STEEN &

HAMILTON

1250 Connecticut Avenue, N.W.

Washington, D.C. 20036

STOCKWELL, SIEVERT, VICCELLIO,

CLEMENTS & SHADDOCK

One Lakeside Plaza

Lake Charles, Louisiana 70601

Liskow & LEWIS

One Shell Square, 50th Floor

New Orleans, Louisiana 70139

December 22, 1979

CHARLES F. LETTOW

JANET L. WELLER

1250 Connecticut Avenue, N.W.

Washington, D.C. 20036

V. PETER WYNNE, JR.

Ofhe Gateway Center

Pittsburgh, Pennsylvania 15222

OLIVER P. STOCKWELL

BERNARD H. MCLAUGHLIN, JR.

One Lakeside Plaza

Lake Charles, Louisiana 70601

Counsel for Respondent

PPG Industries, Inc.

GENE W. LAFITTE

J. BERRY ST. JOHN, JR.

One Shell Square, 50th Floor

New Orleans, Louisiana 70139

Counsel for Respondent

Conoco, Inc.

WILSON - EPES PRINTING Co.. INc.

- 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .........................................-.. 1

SUPPLEMENTAL STATEMENT ............. 5

1. The waste-heat boilers are an integral part of

a power plant employing advanced “cogenera-

RETA SEE va 7

2. The record contains no explanation or factual

support for EPA’s determination to impose ad

hoc requirements not found in its standards. .. 10

SUMMARY OF ARGUMENT .......... 13

SEES Re Se 17

I i 17

I. JUDICIAL REVIEW OF EPA’S DETERMI-

NATION THAT NEW SOURCE STAND-

ARDS APPLY TO PPG’S WASTE-HEAT

BOILERS IS NOT GOVERNED BY THE

SPECIAL PROVISIONS OF SECTION 307

en 19

A. The Statutory Language Regarding Judicial

Review Is On Its Face Ambiguous and Po-

tentially Contradictory. ............................. 20

B. The Legislative History Of Section 307(b)

(1) Evidences A Congressional Intent To

Mandate Special Review in Courts Of Ap-

peals Only For Action Under The Act Where

A Definite And Contemporaneously Compiled

Administrative Record Would Provide A

Ready Basis For Review.

1. The judicial-review provisions of the

Clean Air Amendments of 1970.

TABLE OF CONTENTS—Continued

The revision made by the Clean Air Act

pS BB ) eaereeererr ren

The consequent technical amendments

adopted in November 1977. ....................

C. EPA’s Extreme Interpretation Would Nulli-

fy Provisions Of Section 307, As Well As

Provisions Of Section 206. .............................

EPA’s proffered interpretation would

create an internal conflict in the terms of

the first sentence of Section 307 (b) (1). ..

EPA also asks this court to elide com-

pletely Section 206(b) (2) (B) (ii), (iii)

Ome CIE) TI TD. a ovr cde

D. By Rejecting EPA’s Exhortations For An

Expansive Reading Of Section 307(b) (1),

The Court Of Appeals Construed The Stat-

ute In Accord With Decisions By Other

SE I RS. sabiiciccitttaccncatcneeteonsns

The courts of appeals have carefully

avoided making any expansive interpre-

tations of the special judicial-review pro-

visions in the Clean Air Act, the Clean

Water Act, and the Noise Control Act,

Geapite EPA's GfTOrts. ....:........c.ccccceeesso.s-s

Other decisions by courts of appeals con-

struing the amended Section 307 (b) (1)

are consistent with the Fifth since da

decision in the present case. ..............2.....

EPA’s criticism of review in district

courts is mistaken and misplaced. ............

Page

TABLE OF CONTENTS—Continued

II. IF EXPANSIVELY CONSTRUED, THE RE-

VIEW PROVISIONS OF SECTION 307(b)

RELATING TO “OTHER FINAL ACTION”

WOULD VIOLATE THE DUE PROCESS

CLAUSE OF THE FIFTH AMENDMENT......

Camber gn <cccnsassnseccsslbenweeesenaaan

APPENDIX A

Letter from F. Anne Corbello, Environmental

Control Assistant re: Waste Heat Steam Gen-

erator Change of Fuel ............2:2...-..0:.-...--.-.. ss

APPENDIX B

41 Federal Register 56767-56769 (December 30,

TIT cicennnvcnncosstnseenecsnasserecenninteaanmanaiaeaatn

Page

TABLE OF AUTHORITIES

Cases: Page

Abbott Laboratories v. Gardner, 387 U.S. 136

COU scmntviighnesieticereioet ieee eee 18

Adamo Wrecking Co. v. United States, 484 U.S.

mee CAGU) sii eee 46, 54

‘American Petroleum Institute v. Costle, No. 79-

1104 (D.C. Cir. November 6, 1979) (slip opin-

DODD civcisotiecis Rinses ucteonbbendeaioiiea ce ee 88

American Surety Co. v. Baldwin, 287 U.S. 156

CIID ~ ecinisctesictcscetnccaseihted ee eee ee 4,59

Andrus Vv. Charlestone Stone Products Co., 486

Eh... GR Ce ssciesaei e 45

Atlantic & Gulf Stevedores, Inc. v. Occupational

Safety & Health Review Commission, 584 F.2d

SGA (O8 Cie. WO cee eae eee 61

Bigelow Vv. Forrest, 9 Wall. (76 U.S.) 8339 (1869).. 16, 50

Califano v. Sanders, 430 U.S. 99 (1977) .............. 18, 45

Camp Vv. Pitts, 411 U.S. 188 (1978)... 55

Cheng Fan Kwok v. Immigration & Naturaliza-

tion Service, 392 U.S. 206 (1968) ........0000000000... 19

Chrysler Corp. v. Environmental Protection Agen-

cy, 600 F.2d 904 (D.C. Cir. 1979) _............. 16, 18, 23,

44, 46, 47, 52

Citizens to Preserve Overton Park v. Volpe, 401

US. O68. 40000) oa ee 45, 55, 60

Crown Simpson Pulp Co. v. Costle, 599 F.2d 897

(9th Cir. 1979), cert. pending, No. 79-797......16, 44, 47

E. I. du Pont de Nemours & Co. v. Train, 430

Uae REE CR case ee 47, 52

Environmental Protection Agency v. Brown, 481

CW TD CUED whcendedtieriiendi ea eee 4

Ex Parte Collett, 387 U.S. 55 (1949) _.................. 48

Federal Power Commission v. Transcontinental

Gas Pipeline Co., 423 U.S. 826 (1976) ................ 55

Fitch Co. v. United States, 323 U.S. 582 (1945)... 16, 50

Ford Motor Co. v. Environmental Protection

Ayency, 567 F.2d 661 (6th Cir. 1977) ............... 45

TABLE OF AUTHORITIES—Continued

Page

Fry Roofing Co. v. Environmental Protection

Agency, 415 F.Supp. 799 (W.D. Mo. 1976),

aff'd, 554 F.2d 885 (8th Cir. 1977) ...................... 31

Getty Oil Co. v. Ruckelshaus, 467 F.2d 349 (3rd

Cir. 1972), cert. denied, 409 U.S. 1125 (1978)... 31

Industrial Union Department v. American Petro-

leum institute, Nos. 78-911 and 78-1036 ............ 61

Investment Company Institute v. Board of Gov-

ernors of the Federal Reserve System, 551 F.2d

Be ORS. , RRR er a per ee 45

Jaffke Vv. Dunham, 352 U.S. 280 (1957) .0000200..... 4

Langnes V. Green, 282 U.S. 531 (19381) —..000......... 4

Lindsey v. Normet, 405 U.S. 56 (1972) -...000000000... 4,59

Lockerty v. Phillips, 319 U.S. 182 (1948) .....00000..... 59

Manufacturing Chemists Ass’n v. Costle, 455 F.

TR CW et, A TD ces ccecctitcinaaceinecercnicces 58

Mitchum Vv. Foster, 407 U.S. 225 (1972) —...000000..... 47

Oljato Chapter of Navajo Tribe v. Train, 515 F.2d

I I a iets 43

PPG Industries, Inc. vy. Costle, Civil Action No.

771271 (W.D. La.) (order dated May 22, 1979,

denying EPA’s motion for a protective order)... 55

Panama Refining Co. v. Ryan, 293 U.S. 388

eg aa aeriehaelivindss 61

Rubber Manufacturers Ass’n Vv. Costle, Civil Ac-

tion No. 79-189 (D. Del. filed April 17, 1979).... 55, 56

Save the Bay, Inc. Vv. Administrator of Environ-

mental Protection Agency, 556 F.2d 1282 (5th

iis 55

Sharon Steel Corp. v. Environmental Protection

Agency, 597 F.2d 377 (3d Cir. 1979) .................. 49

Sibbach v. Wilson, 312 U.S. 1 (1941) 00000002... 61

Smith v. Davis, 323 U.S. 111 (1944) -20000. 16, 50

Takao Ozawa v. United States, 260 U.S. 178

|g NE SSE SHER GPE RS EN IRE 1 es ELT ee Oc Cen 47

Tennessee Valley Authority v. Hill, 487 U.S. 153.. 42

Thompson V. United States, 246 U.S. 547 (1918).. 47

TABLE OF AUTHORITIES—Continued

Page

United Gas Pipe Line Co. v. Federal Power Com-

mission, 181 F.2d 796 (D.C. Cir. 1950), cert.

denied, 340 U.S. 827 (1950) .............0... 45

United States Steel Corp. v. Environmental Pro-

tection Agency, 595 F. 2d 207 (5th Cir. 1979) .. 48, 49

United States v. Alpers, 338 U.S. 680 (1950)........ 16, 50

United States v. American Railway Express Co.,

ee Ree I ROD ional ee 4

United States v. New York Telephone Co., 434

Ue Ne I i ak bas, 4

United States v. Powell, 428 U.S. 87 (1975) .......... 16, 50

United States v. Salen, 235 U.S. 237 (1914) ........... 16, 50

United States v. Sisson, 399 U.S. 267 ( 1970)........ 48

United States v. Stever, 222 U.S. 167 (1911)........ 16, 50

United States v. United Continental Tuna Corp.,

I a, I 42

Utah Power & Light Co. v. Environmental Protec-

tion Agency, 553 F.2d 215 (D.C. Cir. 1977) ....... 15, 16,

18, 23, 44, 46, 52

Walling v. General Industries Co., 3830 U.S. 545

Ss RR RRS en ee LEN A) Ree ad 4

Washington v. Environmental Protection Agency

(Scott Paper), 573 F.2d 588 (9th Cir. 1978)...... 45

Yakus v. United States, 321 U.S. 414 (1944) ........ 3, 17,

46, 59, 60

Constitution, Statutes, and Rules:

United States Constitution

ERR ERTL NR Gell SE OT AREER, 60

| ER TE ele 61

5, OE EHAOR SaREVER SST AURSH 3 Mis dinar ee 59

Sk: Gia aa rN ae hg 61

SAD amendment... 8, 5, 19, 59, 63

Administrative Orders Review Act

ae U.S.C. $2867 (b) (8) ........................... 56

VII

TABLE OF AUTHORITIES—Continued

Page

Administrative Procedure Act

I ei a a 17

en Re aa 26, 49, 51

I nk ME acidic i tecdatparpeshonntanis 18, 45

Clean Air Act (as amended)

Rs. ee Sa aneainssicccececeneee 2,6

Bection 226, & U.20. $7410 ...;................... 21

Section 110(a) (2) (D), 42 U.S.C. § 7410(a)

8 RANEY SHEER aiteraetowant enone kar ene 3

Section 110(a) (2) (G), 42 U.S.C. § 7410(a)

a je RES: Ee RE eM RE eee ee ODN 4

Section 110(f), 42 U.S.C. § 7410(f) _..0 2. 35, 36

ee DE. Ge Tes OP cocaine 21

Section 111(d), 42 U.S.C. § 7411(d) 00.0000. 21

Section 111(j), 42 U.S.C. § 7411(j) -o.-0ee... 21, 53

Section 111(j) (1) (A), 42 U.S.C. § 7411(j)

Ss SET a ONS ee ee ee ee 53

Section 12%. 48 U.S.C. § Tie ............................ 21, 54

Section 112(c), 42 U.S.C. § 7412(¢) _..00000.... 21, 50, 53

Section 112(c) (1) (A), 42 U.S.C. § 7412(c)

I iticedsecck ha tien-acubecsaieantbcebcnnaedtuanitedimm ties 53, 54

Section 112(c) (1) (B), 42 U.S.C. § 7412 (c)

5 elle ORAL IE AMeE nate BS aeaeat ania Seon i eee 54

Section 112(c) (1) (B) (ii), 42 U.S.C. § 7412

re oncecemmninial 54

Section 118, 42 U.S.C. § 7418 ........00 21, 62

Section 113 (a) (3), 42 U.S.C. § 7413(a) (3)... 53

Section 113(d), 42 U.S.C. § 7418 (d) -0000 21

Section 119, 42 U.S.C. § 7419 ........................... 21

Section 120, 42 U.S.C. § 7420 ............ 21, 27

Sections 171-178, 42 U.S.C. §§ 7501-7508 ........ 51

Section 202, 42 U.S.C. § 7521.0... 21, 33, 34, 40

Section 202(b) (1), 42 U.S.C. § 7521(b) (1).... 21, 22,

33, 34, 40, 41

Section 202(b) (5), 42 U.S.C. § 7521 (b) (5)... 21

Section 206, 42 U.S.C. § 7526 —..0... 19, 20, 40

VIII

TABLE OF AUTHORITIES—Continued

Page

Section 206(b) (1), 42 U.S.C. § 7525 (b) (1)... 51

Section 206(b) (2) (B), 42 U.S.C. § 7525 (b)

EERE SE SER See Seem: 5, 42, 43, 50, 51

Section 206(b) (2) (B) (ii), 42 U.S.C. § 7525

Ee ene, 22, 23, 35, 36, 42

Section 206 (b) (2) (B) (iii), 42 U.S.C. § 7525

RIEL SA ie Sec eae aA 42

Section 206(b) (2) (B) (iv), 42 U.S.C. § 7525

I St 42

Section 211, 42 U.S.C. § 7545 _...... 21

Section 231, 42 U.S.C. § 75711 ............................ 21

Section 304, 42 U.S.C. § 7604... 43

Section 306(c), 42 U.S.C. § 7606(c) ............... 4

Section 307, 42 U.S.C. § 7607 18, 19, 20, 23, 40

Section 307 (b), 42 U.S.C. § 7607(b) ....... 2, 17, 22, 49,

60, 63

Section 307 (b) (1), 42 U.S.C. § 7607(b) (1) ....passim

Section 307(b) (2), 42 U.S.C. § 7607 (b) (2) ..3, 5, 16,

17, 19, 23, 62

Section 307(d), 42 U.S.C. § 7607(d)............ 37, 38, 51

Section 307 (d) (1), 42 U.S.C. § 7607(d) (1)... 38

Section 307(e), 42 U.S.C. § 7607(e) _.......... 22, 42, 43

Clean Air Act

Section 110, 42 U.S.C. § 1857c-5 (1976)... 24, 26

Section 110(f), 42 U.S.C. § 1857c-5(f) (B)

REE ETN rE ah LIE 35, 36

Section 111(d), 42 U.S.C. § 1857c-6(d)

er EI Rs VORA Te tot arent ee 24, 26

Section 119(c)(2)(A), (B), and (C), 42

U.S.C. §1857h-5(b) (1976) 37

Section 307(b), 42 U.S.C. § 1857h-5 a 32

Clean Air Act Amendments of 1970, Pub. L. No.

91-604, 84 Stat. 1676 (December 31, ee cn, 24

Nata AE ae SR Ol oe aOR 24

Clean Air Act Amendments of 1977, Pub. L. No.

95-95, 91 Stat. 685 (August 7, 1977 ) .14, 15, 18, 20, 22,

27, 29, 35, 41, 42, 43, 52

TABLE OF AUTHORITIES—Continued

Page

Clean Air Act Technical and Conforming Amend-

ments, Pub. L. No. 95-190, § 14, 91 Stat. 1393,

1899 (November 16, 1977) ................ 20, 38, 42, 52, 53

I RE TR Re ARS AAD 38

ND, BINGE CUD CIID chsiseisssncsseccsecessbssenesentionen 20

I rceclanel 53

Federal Water Pollution Control Act

Section 509(b), 33 U.S.C. § 13869(b) —........ 82, 45, 47

Federal Water Pollution Control Act Amendments

of 1977, Pub. L. No. 95-217, 91 Stat. 1566 .......... 32

Judicial Code

IO, cscs ieneddsaenmennbaoiercenes 18, 44

By As MII oncncniinahonasnaieaniclencrwougesiitibiaheoseduass 23

Noise Control Act

Section 16(a), 42 U.S.C. §4915(a) —.......... 45, 46, 47

Occupational Safety and Health Act of 1970

Section 6(f), 29 U.S.C. § 655(f) —......00000002.... 61

Regulations

A i I isa ss cencecphaannnatbedenectedebiuimmanthd 57

Ee ES Eee ES Eee een 30

RD Scpesccisitastbinsessissinnsenienins 33

sere Sl 8 * | | Pee 33, 36, 40

is ctiiccnccntinnicha bh cichienttepbbtekcaientons 4

iene 3

arte. IIT oittnsectkinnnicanciiicinnicoentanncenepimneion 3

Miscellaneous:

SO Ge, FR Te CD ccttnscteacecsicccieccctacinecn. 24, 25

123 Cong. Rec. H. 11,956 (daily ed. November 1,

1977) reprinted in [1977] U.S. Code Cong. &

A. SIE: TITY - ssesteinesicinsblttisiacnegicieineiaeiakeschieutndsihiehidiniemniiacnie 39

123 Cong. Rec. S. 18,598-13,605 (daily ed. August

Re BEE LOR Aes NTC aT ET TT nD 32

TABLE OF AUTHORITIES—Continued

Page

123 Cong. Rec. S. 18,372 (daily ed. November 1,

RN eRe ee See. TN ae 39

41 Fed. Reg. 56767 (December 30, 1976) _......... 31, 32, 36

Currie, Judicial Review Under Federal Pollution

Laws, 62 Iowa L. Rev., 1221 (1977) 34, 36

Currie and Goodman, Judicial Review of Federal

Administrative Action: Quest for the Optimum

Forum, 75 Colum. L. Rev. 1 (1975) .......... 45, 49, 57, 58

Defendant’s Reply Brief in Support of Its Motion

to Dismiss, Rubber Manufacturers Association

v. Costle, Civil Action No. 79-189 (D. Del.)........ 41

H.R. 6161, 95th Cong., Ist Sess. (1977) 35, 51

H.R. 10498, 94th Cong., 2d Sess. (1976) 28

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

ference Report), reprinted in [1977] U.S. Code

Cong. & Ad. News 1502 29, 35, 51

H.R. Rep. No. 94-1742, 94th Cong., 2d Sess. (1976)

8 ee een ee 29

H.R. Rep. No. 91-1783, 91st Cong. 2d Sess., (1970,

reprinted in A Legislative History of the Clean

Air Amendments of 1970 at 151 (1974) ” 24

H.R. Rep. No. 95-294, 95th Cong., Ist Sess., re-

printed in [1977] U.S. Code Cong. & Ad. News

aS eae sentient 29, 31, 35, 37, 51

Letter from F. Ann Corbello to Diana Dutton (De-

gk ee a eee a? aN 13

Letter from James E. Wyche, III to Diana Dutton

RE aon Once oa

S. 4358, 91st Cong., 2d Sess. (1970) 24, 26

S. Rep. No. 91-1196, 91st Cong., 2d Sess. 40-41

(1970) reprinted in Senate Comm. on Public

Works, 93rd Cong., 2d Sess., A Legislative His-

tory of the Clean Air Amendments of 1970, 397

IE - iiitisicdiinidininnininbicaininiecmaena a ee 26

IN THE

Siren Cannt of the United States

OCTOBER TERM, 1979

No. 78-1918

ADLENE HARRISON, Regional Administrator, and

DOUGLAS COSTLE, Administrator of the

Environmental Protection Agency,

Petitioners,

PPG INDUSTRIES, INC. and CONOCO, INC.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF FOR RESPONDENTS

QUESTIONS PRESENTED

The question posed by petitioners (“EPA” or “the

Agency”) would be stated more accurately as follows:

Whether the court of appeals has original and ex-

clusive jurisdiction under Section 307(b) (1) of the

Clean Air Act, as amended, 42 U.S.C. § 7607(b) (1),

to review a final action by the Administrator apply-

ing new-source performance standards to certain

power generating facilities.

As EPA would have it, the courts of appeals have original

and exclusive jurisdiction to review the Agency’s action

in applying regulatory standards to particular facilities.

Indeed, EPA’s arguments would extend an exclusive and

original review jurisdiction of courts of appeals to any

and all actions, of any type or description, taken by the

Agency under the Clean Air Act, as amended (“the

Act”), 42 U.S.C. §§ 7401-7642. EPA’s position depends

entirely upon the construction to be accorded to the phrase

“other final action” used twice in Section 307(b) (1) of

the Act, which otherwise specifically enumerates actions

which are to be subject to review in courts of appeals.

The judicial review provisions in Section 307 (b) and in

other parts of the Act either can be construed to reconcile

the statutory language and Congress’ intent, or can be

construed to read broadly the two “other final action”

phrases (as EPA urges) to produce contradictory and

conflicting results with other parts of the Section and

Act. This Court should seek the interpretation which

best reconciles the statutory provisions. Respondents

(“PPG” and “Conoco”) contend that under such a recon-

ciling interpretation courts of appeals do not have juris-

diction under the “other final action” phrase to review

EPA’s action in applying regulations. No other basis for

jurisdiction of courts of appeals exists, and the decision

of the Court of Appeals for the Fifth Circuit dismissing

PPGQ’s “protective” petition for lack of jurisdiction should

be affirmed.

However, this case has an additional facet which

strongly supports adoption of a reconciling interpretation.

In the court of appeals PPG raised a further issue re-

garding jurisdiction which both PPG and Conoco wish to

maintain before this Court. PPG contended that consti-

tutional issues would arise with an expansive reading of

the “other final action” phrases in Section 307 ( b) (1).

Section 307(b) (1) both specifies the actions subject to

review in a court of appeals and requires that petitions

for review brought under its provisions must be filed

within sixty days of the date on which notice of the action

is given in the Federal Register. The immediately

subsequent provision of the Act, Section 307(b) (2), ope-

rates in civil or criminal enforcement cases to preclude

the presentation of defenses based upon matters which

could have been raised in a review action brought in a

court of appeals under Section 307(b)(1).' By their

terms, the judicial-review provision and the review-

preclusion clause are coextensive in scope.

PPG argued in the court of appeals that, if the review

provision (any “other final action . . . which is locally or

regionally applicable”) were construed to pertain to any

final local or regional action, of whatever nature, taken

by EPA, the provision would violate the due process

clause of the fifth amendment to the Constitution and

should be given no effect. See Brief For Petitioner in the

court of appeals, at 50. Many of the Agency’s very in-

formal actions would be brought within the compass of

Section 307(b) (1), were that Section construed as ex-

pansively as EPA here argues. For many of these

actions, review might not be actually sought in a court

of appeals;? yet, the review preclusion clause would fore-

1 This “review preclusion” clause is very harsh. A similar provi-

sion limiting judicial review of regulations under wartime price

control legislation was upheld against due process objections by this

Court in Yakus v. United States, 321 U.S. 414, 434-437 (1944).

2 EPA can and does take a large number of “final actions” under

the Act in a very informal way, as illustrated by the facts in the

present case. See infra, at 5. These informal actions are not

taken on the basis of a contemporaneously compiled administrative

record. They include the Agency’s decision to grant preconstruc-

tion approval for a new or modified facility located in a State which

does not itself undertake such preconstruction review. Precon-

struction review is required by Section 110(a)(2)(D) of the Act,

42 U.S.C. § 7410(a)(2)(D), and 40 C.F.R. § 51.18. For example,

Mississippi does not provide preconstruction review, so EPA

itself carries out this regulatory function within that State. See

40 C.F.R. §52.1276. Another informal action by EPA is the

close defenses. In effect, the pair of provisions would

combine to bar the opportunity to obtain judicial re-

course or to present every available defense. The statute

thus runs afoul of the due process clause. See Lindsey

Vv. Normet, 405 U.S. 56, 66 (1972) ; American Surety Co.

V. Baldwin, 287 U.S. 156, 168 (1932).

_The court of appeals construed the judicial-review pro-

visions of the Act to avoid the necessity of reaching this

constitutional claim. In this Court, PPG and Conoco do

not wish to abandon the claim, and accordingly must

reiterate it now. Because the claim does not attack the

decree and judgment of the court of appeals, but rather

“merely asserts additional grounds why the decree should

be affirmed,” the claim is properly before the Court.

Langnes v. Green, 282 U.S. 581, 589 (1931). See also

Jaffke v. Dunham, 352 U.S. 280 (1957) ; Walling v. Gen-

eral Industries Co., 230 U.S. 545, 547 nb (1947) ;

United States v. American Railway Express Co. 265

U.S. 425, 435-436 (1924) (Brandeis, J.)*

Agency’s decision to “blacklist” a particular facili

\g cility (bar th -

cility from supplying goods or services to the ileal cen

q ;

— rg tis of the Act, 42 U.S.C. § 7606(c), and 40

Included also are several minor and ver iti

“final” actions. Such actions include a Pe Rl gene reg

nician not to pass an individual car during a motor vehicle emis-

Sions Inspection, where EPA establishes its own regulations and

facilities to carry out such inspections upon failure of a State to

do so. See Section 110(a)(2)(G) of the Act, 42 U.S.C. § 7410(a)

(2)(G). Cf. Environmental Protection Agency v. Brown, 431 U.S

99 (1977). Persons aggrieved by such minor actions would not be

likely to carry their dispute wi

pane pute with EPA to a court of appeals for

* As the Court said in United States v

434 U.S. 159, 166 n.8 (1977): - New York Telephone Co.,

[T)he prevailing party may defend a j

judgment on any ground

which the law and record permit that would not caanan the

relief it has been granted.

The additional question reflecting PPG’s and Conoco’s

constitutional claim can be stated as follows:

If the clause in Section 307(b) (1) of the Act

which calls for review in courts of appeals of un-

specified “other final action . . . which is locally or

regionally applicable’ were to be construed as ex-

pansively as EPA here advocates, would it violate

the due process clause in light of the coextensive

review-preclusion provision of Section 307 (b) (2)?

EPA’s brief neither mentions nor discusses the con-

stitutional facet of this case. Significantly, EPA’s brief

also fails to mention, let alone discuss, several statutory

provisions which would be nullified if its expansive read-

ing of the “other final action” phrases in Section 307

(b) (1) were to be adopted. The most important of

these ignored provisions is Section 206(b) (2) (B) of the

Act, 42 U.S.C. § 7525 (b) (2) (B), which sets out a special

judicial-review procedure. EPA also has provided a

severely truncated exegesis of the legislative history of

amendments to the Act, which avoids many pertinent

materials. In addition, EPA omits any reference to a

uniform line of decisions in the courts of appeals con-

struing special review provisions in this and other simi-

lar statutes contrary to the Agency’s position here. EPA’s

complete failure to deal with these points unfortunately

requires that this brief be longer than otherwise would

be necessary.

SUPPLEMENTAL STATEMENT

PPG and Conoco do not quarrel with EPA’s Statement,

as far as it goes. In arguing the merits, however, EPA

says it “do[es] not think that the administrative record

in this case is ‘skeletal’” (EPA’s Br. at 24), notwith-

standing the expressed view of the court of appeals to

the contrary. (587 F.2d at 244-245, Pet. App. 17a-20a.)*

The court of appeals had a sound basis in the record for

its opinion, and this supplemental statement will focus

on that basis.

The entire certified record consists of 97 pages of cor-

respondence.* The court of appeals noted that this record

“may leave the reviewing court unable to verify the

Administrator’s grounds [for his determinations], or,

perhaps, to identify those grounds at all.” (587 F.2d at

244, Pet. App. 17a.)

The record shows that EPA determined PPG’s “waste

heat” boilers to be “new sources” subject to the Agency’s

Standards of Performance for Fossil-Fuel Fired Steam

Generating Units (the “new source standards” or the

“standards”). (A. 97-98, 104-106.) However, EPA did

not actually apply the requirements of the new source

standards to the waste-heat boilers. Instead the Agency

imposed special ad hoe requirements drawn in part from

the standards and in part from its own fiat. The record

shows no basis, factual or legal, for this aspect of EPA’s

determinations.°®

* Several abbreviations are used in this brief. “Pet. App.” refers

to the appendix to the petition for certiorari. “A.” refers to the

Appendix to the Briefs, where the entire administrative record is

reprinted. “EPA’s Br.” refers to petitioner’s opening brief on the

merits.

To avoid lengthy citations to provisions of the Clean Air Act, 42

U.S.C. §§ 7401-7642, this brief will cite only the sections of the Act

itself, after an initial citation which includes also the corresponding

section of the codification in Title 42 of the United States Code.

5 As reprinted in the Appendix to the Briefs, this record takes

up 108 pages.

* The problems arising due to the deficiencies in the record are

compounded by EPA’s volte face in “applying” the standards to the

1. The waste-heat boilers are an integral part of a power

plant employing advanced “cogeneration” technology.

The term “cogeneration” is used to denote energy-

efficient production both of electricity and of process

steam at one power plant. PPG has a large multi-plant

chemical works at Lake Charles, Louisiana (“Lake

Charles Works” or “Works”), which requires significant

amounts of both electricity and steam for its process

operations. In these circumstances, use of cogeneration

technology can provide a dependable source of power

plus large savings in energy.

PPG’s “Power Plant C” at the Lake Charles Works is

a coordinated system consisting of two gas turbine gen-

erators, two “waste heat” boilers, and one steam turbo-

generator.’ Each gas turbine produces electricity from

combustion of natural gas.* The exhaust gases from the

turbines ordinarily would be vented to the atmosphere.

However, because these exhaust gases contain considerable

waste-heat boilers. Compare A. 102 (letter of August 3, 1977—

standards apply only when 100% fossil fuel is used in the boilers)

with A. 104-106 (letter of August 18, 1977—continuous operating

and monitoring requirements imposed, with further monitoring and

reporting requirements to be developed and put into effect regarding

the sulfur content of the fuel used).

Moreover, EPA’s Decision to impose ad hoc requirements con-

trasts sharply with its decision at the outset to subject the waste-

heat boilers to the standards. PPG's special design and use of the

waste-heat boilers as integral parts of the overall cogeneration

system was completely ignored by EPA in its decision that the

boilers were subject to the standards. See infra, at 9-10 & nn. 12-13.

7 This factual summary is taken from the description set out by

the court of appeals (587 F. 2d at 238-239, Pet. App. 2a-3a) and the

record (A. 15-22, 27-29, 34-48, and 51-58) except as may be spe-

cifically noted.

8 The General Electric gas turbines can also use oil of certain

specifications as fuel. (A. 48.)

residual heat, in PPG’s unit the gases are routed to the

waste-heat boilers. There the heat in the exhaust gases,

plus heat from firing supplemental fuel,® is used to

generate high-temperature, high-pressure steam. Only

then are the spent exhaust gases discharged to the atmos-

phere. The high-temperature, high-pressure steam pro-

duced by the waste-heat boilers is supplied to the steam

turbogenerator to make electricity, and the resulting

lower-temperature, reduced-pressure steam is used in

chemical processing operations at the Lake Charles

Works.” Similarly, the electricity generated by the gas

®* This supplemental fuel can be either natural gas, fuel oil, or

hydrogen.

10 As the court of appeals said:

This exhaust from the turbines contributes nearly 40% (ap-

proximately 371 million British thermal units per hour) of the

total input to the waste heat boiler, while the remaining heat

(approximately 598 million British thermal units per hour) is

provided by combustion of fuel oil or natural gas. (587 F.2d

at 239. Pet. App. 2a-3a.)

The heat from the turbine exhausts is sufficient by itself (i.e.,

without heat from supplemental fuel) to make steam of medium

pressure and temperature in the boilers. However, some supple-

mental fuel must be used in at least one of the two waste-heat

boilers to generate steam of sufficiently high temperature and

pressure so that the steam turbogenerator may be used to generate

electricity. When no supplemental fuel is used in either of the

boilers, the steam is not at a temperature or pressure sufficient to

prevent the steam from condensing on the final blades of the steam

turbogenerator. If the steam were allowed to condense on the

blades, corrosion would set in and damage the turbine.

The entire system is controlled by computer, to allow the output

of the coordinated components to be governed by the plant’s needs.

The key determinant is the plant’s steam requirement. The turbo-

generator is operated to pull off or extract the appropriate amount

of steam for the plant. The electrical output of the turbogenerator

varies accordingly, depending both upon the amount of steam ex-

turbines and the steam turbogenerator is entirely used

at the Works. The energy savings are notable."

The dispute over the applicability of the new source

standards stems from two root causes. First, PPG began

to construct the coordinated unit in 1970, well prior to

August 17, 1971, the applicability date of the new source

standard.’* Second, EPA’s new source standards do not

tracted for plant use and upon the amount of steam sent to the

turbo-generator by the waste-heat boilers.

The following diagram represents the system (but does not show

electrical output) :

FUEL > — FUEL

| | 2

FRESH e o FRESH

ree TURBINE TURBINE bee SEP

a GENERATOR GENERATOR al

Rocctemets ssagreser ene ame

FoR

stack A

FAN

FRESH

DAMPERS i es

el waste stack} tsracx we waste

r=] eoer cree

L_ |

STEAM

TURBO- GENERATOR

STEam SsTeam

11 The cogeneration aspects of the system save energy equivalent

to 1 million barrels (42 million gallons) of oil per year.

12 PPG completed plans for the system in 1970, and on Novem-

ber 11, 1970 entered into a contract with General Electric Co. for

purchase of the two gas turbines and the turbogenerator. (A. 52,

54-58.) The purchase contract allowed PPG to cancel the contract

without penalty on or before May 1, 1971. (A. 56.) The contract

could be cancelled from that date to June 1, 1971, upon payment of

a set fee. (Jd.) PPG advised EPA in 1976 that:

The purchase of the gas turbines and turbogenerators in 1970

represents a commitment of $9.4 million, covering two-thirds

FORCED

ORAFT

FAN

refer to “waste heat” boilers and were not developed with

cogeneration systems in mind." In the standards, EPA

did not take into account any of the particular air-

emission control problems arising with such systems.

2. The record contains no explanation or factual support

for EPA’s determination to impose ad hoc require-

ments not found in its standards.

EPA’s actions in the present case illustrate several of

the difficulties in applying the current new source stand-

ards to cogeneration units, or more specifically to the

boiler segment of such units. The record nonetheless con-

tains no explanation by EPA or factual support for the

Agency’s ad hoc imposition of requirements not found in

the standards.

In EPA’s letter of June 8, 1977, which responded to

PPG’s request for a determination of applicability, the

v4 “— equipment purchased in the combined cycle power plant.

. 52.)

EPA refused to consider the fact that the waste-heat boilers by

design could not practically function except as part of the coordi-

nated total unit. In a letter dated December 22, 1976, an official

of EPA’s Region VI stated:

Even though you [PPG] may have ordered equipment [the

steam turbogenerator] before the date of the proposed regula-

tions that would be completely useless without the steam gen-

erators [the “waste heat” boilers] that action would be irrele-

vant to determine the applicability of the regulations to the two

steam generators.

We hope that this discussion makes it clear why the two steam

generators are subject to the provisions of the Standards of

a for New Stationary Sources, 40 C.F.R. Part 60.

. 59.)

#8 As EPA’s Director of Stationary Source Enforcement said in

a memorandum to an official in EPA’s Region VI Office,

the Agency, when it established NSPS for fossil-fuel steam

generators on December 23, 1971, had gathered data for only

units which burn 100 percent fossil fuel. (A. 96 (emphasis in

the original).)

Agency said the waste-heat boilers were subject to the

standards because they were capable of operating with-

out any waste-heat contribution (7.e., with heat derived

100 percent from fuel burned in the boiler) at the

requisite quantitative level for coverage (250 million

British thermal units per hour). (A. 97.) This deter-

mination, however, did not focus on the ordinary mode of

operation of the waste-heat boilers, where substantial heat

is contributed by exhaust gases from the gas turbines. In

normal operation, the boilers emit a stream of inextric-

ably commingled air and pollutants stemming both from

the gas turbines and from the fuel fired as a supple-

mental heat source in the boilers. Because the pollutants

from these two sources cannot be segregated, the quanti-

tative limits in the standards for emissions of particulate,

sulfur dioxide, and nitrogen oxides could not be applied.

PPG’s request for a clarification (A. 99-101) was

answered by a letter dated August 3, 1977, in which

EPA’s Director of Stationary Source Enforcement stated

that the standards would apply only during a perfor-

mance test or other periods when the boilers were operat-

ing entirely using fossil fuel. (A. 102.)

This determination had a short life. On August 18,

1977, she Director by letter retracted the August 3rd

determination and instead imposed specific requirements

to be applicable to the operations of the waste-heat boilers

at all times. (A. 104-106.) He stated that PPG was not

required to install equipment for or conduct the con-

tinuous monitoring for sulfur dioxide (SO,), nitrogen

oxides (NQ.:), or carbon monoxide (CO) mandated by the

standards. Thus, when operated normally with heat de-

rived from the turbine exhausts, the boilers would

not be subject to the emission limits for those pol-

lutants in the standards. However, PPG would be

required at all times to burn in the boilers fuel which

contained amounts of sulfur equal to or less than a sulfur

level to be specified as a result of performance tests

conducted in compliance with the standards, when the

boilers were operated with 100-percent fossil fuel (no

waste-heat contribution). PPG would be required to

install and operate continuous opacity monitors in

the stacks of the waste-heat boilers (presumably to

assess particulate emissions), and it would also be

required to “perform some form of alternative mon-

itoring” which could include a requirement to moni-

tor and report on the sulfur content of any supplemental

fossil fuel burned in the boilers. (A. 105.)

EPA thus did not actually apply the standards to the

waste-heat boilers. Among other things, the standards

themselves do not prescribe fuel requirements, nor do they

authorize EPA officials to establish fuel requirements in

particular cases. In effect, EPA imposed new, ad hoc

requirements for the waste-heat boilers under the guise

of applying the standards. Most importantly for present

purposes, the record contains no evidence or information

relating specifically to the requirements which were

chosen.**

During the pendency of this litigation to review EPA’s

determinations, PPG has operated the waste-heat boilers

14 As noted previously, the materials gathered by EPA to develop

the new source standards similarly do not address emissions either

from cogeneration units or from units burning waste materials

(e.g., bark, wood residues, or garbage) as well as fossil fuels. See

supra, at 10, n.13. Since the standards were originally adopted in

December 1971, EPA amended the standard to take into account

blending of wood residue and fossil fuel, both during the perform-

ance tests and thereafter during operation. (A. 96.) In EPA’s

words, these amendments apply “to no other combination of fossil

fuel and waste material” (id.), and certainly do not apply to

“waste” hot gases. The exhaust gases from the turbines are not

“burned” at all in the “waste heat” boilers. Jd.

in compliance with requirements specified by EPA. PPG

nonetheless remains very concerned that reliable and eco-

nomic low-sulfur fuel sources may not be available for

use with the cogeneration system. PPG’s fuel supplier,

Conoco, in the last several months increasingly has ex-

ercised its contractual option to make fuel switches, as

the letter reprinted in Appendix A, infra, illustrates.

SUMMARY OF ARGUMENT

The court of appeals correctly dismissed a “protective”

petition for review filed by PPG regarding EPA’s action

in determining that the Agency’s new source standards

applied to “waste heat” boilers comprising part of a

cogeneration power system at PPG’s plant in Lake

Charles, Louisiana. EPA’s action was “final” and “local-

ly and regionally applicable” within the meaning of

Section 307(b) (1) of the Clean Air Act, but the Agency’s

action was not one of those specified with particularity

in the Section. Jurisdiction in the court of appeals had

to arise, if at all, from the “other final action” phrase

added to the second sentence of Section 307(b) (1) by the

15 PPG has complied with the standards largely by using natural

gas as the supplemental fuel for the waste-heat boilers. As pre-

scribed by the standards, performance tests with natural gas were

carried out on the first waste-heat boiler on August 24, 1977 (App.

97), and on the second waste-heat boiler on May 3, 1979. Letter

from James E. Wyche, III to Diana Dutton, Director, Enforce-

ment Division, EPA Region VI (June 21, 1979). In each such test,

the boilers met the requirements established by the standards and

EPA’s ruling of August 18, 1977.

Subsequently, PPG has notified EPA of the occasions when

Conoco, the supplier of fuel to the Works under a requirements con-

tract, has chosen to supply fuel oil rather than natural gas. An

example of these notices (Letter from F. Ann Corbello to Diana

Dutton, Director, Enforcement Division, EPA Region VI (Decem-

ber 3, 1979)), is reprinted infra as Appendix A to this brief.

Fuel oil of 0.7% sulfur content or less has been calculated to

satisfy the requirements of EPA’s letter ruling of August 18, 1977.

Under otherwise applicable Louisiana refBmements, the boilers

would have to use fuel oil with a sulfur content of 1.0% or less.

Clean Air Act Amendments of 1977. The phrase will not

support the expansive jurisdictional reach which EPA

presses on this Court.

EPA insists that all final actions taken by the Agency,

of any nature whatsoever, must be reviewed in courts of

appeals under Section 307(b) (1). This very broad read-

ing of the “other final action” phrases in the Section

creates a direct conflict between those phrases and the

other judicial review provisions in Section 307(b) (1) and

elsewhere in the Act.

EPA’s expansive reading would create the situation

in which actions specifically excepted from review in

courts of appeals because of a parenthetical exclusion in

the first sentence of Section 307(b) (1) would be brought

back into the ambit of review in courts of appeals by the

general “other final action” phrase. Moreover, EPA’s

reading would nullify entirely the special judicial review

provisions found separately in Section 206(b) (2) (B) of

the Act. This Court should reject EPA’s arguments and

adopt the construction of Section 307(b) (1) which best

reconciles these potentially conflicting provisions bearing

on judicial review.

EPA also ignores completely the interpretation given

to Section 307(b)(1) prior to the 1977 Amendments,

and Congress’ failure to indicate in any way that it

wished to override this prior interpretation by enacting

the Amendments. Indeed, Congress gave no signal of

any kind that it wished to make the massive change in

the Act’s allocation of review jurisdiction between courts

of appeals and district courts which would be the result

of EPA’s reading of the “other final action” phrases in

Section 307 (b) (1).

Prior to 1977, the courts of appeals uniformly con-

strued Section 307(b)(1) such that jurisdiction to

review EPA’s actions in applying standards to particular

facilities rested with district courts rather than courts

of appeals. E.g., Utah Power & Light Co. V. Environ-

mental Protection Agency, 5538 F.2d 215 (D. C. Cir.

1977). The provisions in Section 307(b) (1) were strictly

construed, and EPA’s determinations regarding appli-

cation of its regulations were not among the items speci-

fied in Section 807(b) (1) for review in courts of appeals.

As part of the Clean Air Act Amendments of 1977,

Pub. L. No. 95-95, 91 Stat. 776, Congress added several

further explicitly enumerated actions to those subject

to special review in courts of appeals. It also added the

phrase “other final action” both to the first sentence of

Section 307(b) (1) providing for review of nationally.

applicable actions in the D.C. Circuit and to the second

sentence of Section 307(b) (1) providing for review of

locally and regionally applicable actions in the U.S. Court

of Appeals for the “appropriate” circuit. These changes

were based upon recommendations of the Administrative

Conference which were addressed to venue questions, not

jurisdiction. Congress specifically stated it was not acting

on the recommendations of the Administrative Conference

relating to jurisdiction. Moreover, shortly thereafter,

Congress enacted the Clean Air Act Technical and Con-

forming Amendments, Pub. L. No. 95-190, § 14, 91 Stat.

1393, 13899 (1977), in which a number of other actions

were made specifically reviewable in courts of appeals.

These “necessary” technical changes would not have been

warranted if the “other final action” phrase was intended

to reach the extraordinarily wide range of matters which

EPA now urges it covers.

EPA’s exhortations for an expansive reading also run

afoul of the uniform line of decisions in the courts of

appeals construing the special judicial-review provisions

of the Clean Air Act “narrowly” and “strictly”, just as

the courts of appeals have similarly construed comparable

provisions in the Clean Water Act and the Noise Control

Act. Courts have been troubled by the harsh terms of

the coextensive review-preclusion clause found in Section

307(b) (2) of the Act, and comparable provisions in

the other acts. See Utah Power & Light Co. v. Envi-

ronmental Protection Agency, 553 F.2d 215, 219 n.19

(D.C. Cir. 1977); Chrysler Corp. v. Environmental

Protection Agency, 600 F. 2d 904, 910 & n. 59, 914 (D.C.

Cir. 1979). They have also been cognizant of the difficulty

the courts of appeals have in reviewing agency decisions

not taken on the basis of a definite and contemporane-

ously compiled administrative record. See Crown Simpson

Pulp Co. v. Costle, 599 F.2d 897, 900 (9th Cir. 1979),

cert. pending, No. 79-797.

EPA also would use the general “other final action”

phrase to expand the reach of Section 307(b) (1) very

greatly beyond the compass provided by those actions

specifically enumerated in Section 307(b) (1) as subject

to review in the courts of appeals. The enumerated ac-

tions call for action by EPA on the basis of a definite

record stemming from administrative proceedings based

at least on notice and an opportunity to comment. By

contrast, many of the actions EPA would sweep into

the special review provisions do not have to be and

are not taken by EPA on the basis of a record but

rather are taken very informally, perhaps only on the

basis of correspondence as in the present case. In the

circumstances, the rule of ejusdem generis should be ap-

plied, to limit the general “other final action” phrase to

matters similar to those covered in the preceding enum-

erated references. See Fitch Co. v. United States, 323

U.S. 582, 585-586 (1945) ; Smith v. Davis, 323 U.S. 111,

116-117 (1944) ; United States v. Salen, 235 U.S. 237,

239 (1914) ; United States v. Stever, 222 U.S. 167, 174-

175 (1911) ; Bigelow v. Forrest, 9 Wall. (76 U.S.) 339,

348-349 (1869). Compare United States v. Powell, 423

U.S. 87, 91, (1975); United States v. Alpers, 338 U.S.

680, 682 (1950).

EPA also denigrates the ability of district courts to

review federal agency action. EPA’s criticisms are mis-

taken and misplaced, for both the courts of appeals and

legal commentators have recognized that district courts

are better suited than courts of appeals to deal with

agency action taken on an ill-defined administrative

record.

EPA’s reading of the judicial review provisions of Sec-

tion 307(b) (1) is so extreme that it would often prevent

parties from obtaining judicial recourse from Agency

action or from presenting every available defense in an

enforcement suit. The judicial-review provisions neces-

sarily carry with them the coextensive review-preclu-

sion clause of Section 307(b) (2). Taken together as EPA

would read them, these provisions would not afford to af-

fected parties “ a reasonable opportunity to be heard” as

the due process clause of the fifth amendment to the Con-

stittuion requires. Yakus v. United States, 321 U.S. 414,

433 (1944). The broad range of matters involving partic-

ular facilities or minor events which would be made sub-

ject to Section 307(b) by EPA’s reading would not as a

practical matter be carried by aggrieved parties to courts

of appeals for review, even though no other opportunity

for judicial oversight of the Agency’s action would be

available and review-preclusion would bar later defenses.

ARGUMENT

Introduction

EPA, PPG, and Conoco all agree that EPA’s determi-

nations in the letters of June and August 1977 are “final

action” within the meaning of the Administrative Pro-

cedure Act, 5 U.S.C. § 551(13). See EPA’s Br. at 12-16.

As such, EPA’s action is subject to judicial review.’®

16 PPG and Conoco have never disputed the finality of EPA’s

action. Curiously, however, EPA takes up four full pages of its

brief in arguing the “plain meaning” of “final action” in Section

807(b)(1). These arguments avoid rather than address the dis-

puted portion of the statute. The question is not whether EPA’s

action here is “final” under traditional concepts of administrative

law, but rather whether it is within the “other final action” con-

templated by Congress in amending Section 307(b) (1).

Unless a special statutory provision prescribes the form

of and terms for review, the Administrative Procedure

Act’ and the federal-question jurisdictional statute '*

provide the substantive and jurisdictional predicates for

judicial review in federal district court. See, e.g., Abbott

Laboratories v. Gardner, 387 U.S. 186, 140-141 (1967).

There was no doubt prior to the Clean Air Act Amend-

ments of 1977, Pub. L. No. 95-95, 91 Stat. 776, that juris-

tion to review EPA’s action in determining whether its

new source standards were applicable to a particular facil-

ity would have rested with district courts. Such deter-

minations were not among the actions specifically enum-

erated in Section 307(b) (1) as being reviewable exclu-

sively in the courts of appeals. See Utah Power & Light

Co. v. Environmental Protection Agency, 553 F.2d 215

(D.C. Cir. 1977) (Leventhal, J.) ; ef. Chrysler Corp. v.

Environmental Protection Agency, 600 F.2d 904, 910 &

n.59 (D.C. Cir. 1979) (ruling on jurisdiction to review

actions under the Noise Control Act of 1972; that Act’s

review provisions are modeled on those of the Clean Air

Act) (Robinson, J.). EPA urges that revisions to Section

307 made in the 1977 Amendments require a different

result than that reached under the law as it stood prior

to the Amendments.

The initial question in this case is thus whether the

special review provisions in Section 307(b) (1) of the

Act apply to EPA’s determinations regarding the appli-

cation of its regulations to particular facilities such as

PPG’s waste-heat boilers. Because EPA’s action here

is not among those listed with specificity in Section

307(b) (1), the action must be within the reach of the

“other final action” phrase in order for the court of ap-

175 U.S.C. §§ 701-706.

1828 U.S.C. §1331(a). See Califano v. Sanders, 430 U.S. 99

(1977).

peals to have original and exclusive jurisdiction. Based

upon an analysis of (1) the judicial review provisions in

Sections 307 and 206 of the Act,'® (2) the legislative

history of these provisions, and (3) the reasoning of de-

cisions of courts of appeals construing these provisions

and comparable portions of other environmental regula-

tory acts, this Court should conclude that the special

review provisions do not apply here and that review

initially is to take place in the district courts rather than

in the courts of appeals.

The coverage and scope of the special review provisions

in Section 307(b) (1) are affected strongly by the coex-

tensive review-preclusion language in Section 307 (b) (2)

of the Act. If this Court should construe the judicial-

review provisions sufficiently expansively to embrace

EPA’s very informal determinations in the present case,

then the Court must address the further question of

whether the review provisions, given the accompanying

review-preclusion language, contravene the due process

clause of the fifth amendment.

I, JUDICIAL REVIEW OF EPA’S DETERMINATION

THAT NEW SOURCE STANDARDS APPLY TO

PPG’S WASTE-HEAT BOILERS IS NOT GOVERNED

BY THE SPECIAL PROVISIONS OF SECTION

307(b)(1) OF THE ACT.

This Court has observed that statutes creating special

review procedures “must be construed both with precision

and with fidelity to the terms by which Congress has

expressed its wishes.” Cheng Fan Kwok v. Immigration

& Naturalization Service, 392 U.S. 206, 212 (1968). Ap-

plication of this principle in the present case is made

difficult by the inelegant way in which Congress has ex-

19 Section 206 of the Act is codified at 42 U.S.C. § 7525. The

special judicial review provisions of this Section are set out infra,

at 22-23.

pressed itself and by EPA’s singular focus on two phrases

in the Act while ignoring completely other pertinent

statutory provisions. This Court thus is faced with the

task of adopting the construction of the special judicial-

review provisions of Section 307(b) (1) which best re-

conciles potentially contradictory provisions.

A. The Statutory Language Regarding Judicial Review

Is On Its Face Ambiguous and Potentially Con-

tradictory..

The special judicial-review provisions of Sections 307

and 206 are ambiguous and open to a construction which

introduces a conflict among them. Construed as EPA

argues, Section 307 would nullify entirely the re-

view provisions of Section 206. EPA would also have

the general “other final action” phrase of Section 307

pull back within its coverage those actions specifically

excepted by explicit parenthetical language in the Section.

EPA’s opening brief fails even to mention these ambigui-

ties and potential contradictions.*” The Court accordingly

must exercise great care in construing the judicial review

provisions to arrive at a reasoned interpretation of a

poorly drawn statute.

The special judicial review provisions are chiefly found

in Section 307. The provisions in Section 307 prescribing

the scope and terms of review in courts of appeals are the

first, second, and fourth sentences of paragraph 307

(b) (1). In the following quotation, the language added

by the 1977 Amendments is italicized, and that added by

the subsequent Clean Air Act Technical and Conforming

Amendments, Pub. L. No. 95-190, § 14(a) (79), (80), 91

Stat. 1404 (November 16, 1977), is shown in bolder type:

(b) (1) A petition for review of action of the Ad-

ministrator in promulgating any national primary

20 EPA’s brief does not cite Section 206 in any respect whatsoever.

or secondary ambient air quality standard, any emis-

sion standard or requirement under section 112, any

standard of performance or requirement under sec-

tion 111, any standard under section 202 (other than

a standard required to be prescribed under section

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

(b)(5), any control or prohibition under section 211,

any standard under section 231, any rule issued

under section 113, 119 or 120, or any other nationally

applicable regulations promulgated, or final action

taken, by the Administrator under this Act may be

filed only in the United States Court of Appeals for

the District of Columbia. A petition for review of

the Administrator’s action in approving or promul-

gating any implementation plan under section 110 or

section 111(d), any order under section 111(j), un-

der section 112(c), under section 113(d), under sec-

tion 119, or under section 120, or his action under

section 119(c) (2) (A), (B), or (C) (as in effect

before the date of enactment of the Clean Air Act

Amendments of 1977) or under regulations there-

under, or any other final action of the Administrator

under this Act (including any denial or disapproval

by the Administrator under title I) which is locally

or regionally applicable may be filed only in the

United States Court of Appeals for the appropriate

circuit... . Any petition for review under this sub-

section shall be filed within siaty days from the date

notice of such promulgation, approval, or action

appears in the Federal Register... .

When all provisions of paragraph 307(b) (1) are con-

strued broadly, in accordance with EPA’s contentions, the

paragraph seems to turn itself inside out. The first sen-

tence calls for review in the D.C. Circuit of “any standard

under section 202 (other than a standard required to be

prescribed under section 202(b)(1))”, yet EPA reads

the language of “any other nationally applicable regu-

lations promulgated, or final action taken” to bring the

parenthetically excluded standard-setting action of Sec-

tion 202(b) (1) back into the reach of the sentence.

In all events, standing alone, the “any other . . . final

action” clauses of both the first and second sentences are

ambiguous. Section 307(b) does not specify whether the

“other final action” being addressed has to be similar in

nature to those actions specified with particularity.“ Nor

does it speak to whether the “other” action can be rule-

making, adjudication, or both, or action taken upon an

administrative record, or taken informally without re-

course to a contemporaneously compiled record, or both.

Then too, subsection 307(e) provides:

(e) Nothing in this Act shall be construed to

authorize judicial review of regulations or orders of

the Administrator under this Act, except as provided

in this section.**

Subsection (e) is difficult to parse. because it contains

three cross-references respectively to “this Act,” “this

Act,” and “this section.” Arguably, it could be read to

provide that of the provisions in the Act, only those in

Section 307 can provide a basis for judicial review of

regulations or orders of EPA issued under the Act. But

see infra, at 42-43 n.40. Yet, Section 206(b) (2) (B) (ii)

sets out a further specific provision for judicial review:

(ii) In any case of actual controversy as to the

validity of any determination under clause (i) [re-

garding whether proper tests were conducted to de-

termine compliance with a manufacturer’s certifi-

cate of conformity with motor-vehicle emission

requirements], the manufacturer may at any time

prior to the 60th day after such determination is

21 Both the legislative history and canons of statutory construc-

tion do bear on this question. See infra, at 24-40, 42, and 50.

22 This text is italicized because the subsection was added by the

1977 Amendment. The legislative history of Subsection (e) is de-

scribed, infra, at 42-43 n.40.

made file a petition with the United States court of

appeals for the circuit wherein such manufacturer

resides or has his principal place of business for a

judicial review of such determination. A copy of the

petition shall be forthwith transmitted by the clerk

of the court to the Administrator or other officer

designated by him for that purpose. The Adminis-

trator thereupon shall file in the court the record of

the proceedings on which the Administrator based

his determination, as provided in Section 2112 of

title 28 of the United States Code.

Moreover, as an additional matter, the special judicial-

review provisions of Section 206(b) (2) (B) (ii) could

conflict with those of Section 307(b) (1), depending upon

the scope to be given to “other” actions under the latter

section.

Looming over all of these statutory provisions is Sec-

tion 307(b) (2), which precludes any subsequent reviev

of an action which was or could have been reviewed un-

der Section 307(b) (1). This harsh review-preclusion pro-

vision provides in its entirety:

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.

Judge Leventhal’s opinion for the court in Utah Power &

Light Co. v. Environmental Protection Agency, supra,

gave the review-preclusion provision considerable weight

in adjudging the sweep of Section 307(b) (1). 553 F.2d

at 218 n.14, 219 & nn.18 & 20. Cf. Chrysler Corp. v.

Environmental Protection Agency, 600 F.2d 904, 912-914

& nn. 75-90 (D.C. Cir. 1979).

Because Section 307 is ambiguous and, on EPA’s read-

ing, contradictory, the inquiry must turn to Congress’

intent in enacting the Section.

B. The Legislative History Of Section 307(b)(1) Evi-

dences A Congressional Intent To Mandate Special

Review In Courts Of Appeals Only For Action

Under The Act Where A Definite And Contempo-

raneously Compiled Administrative Record Would

Provide A Ready Basis For Review.

1. The judiciai-review provisions of the Clean Air

Amendments of 1970.

Section 307(b)(1) had its genesis in the Clean Air

Amendments of 1970, Pub. L. No. 91-604, §$ 12(a), 84

Stat. 1676, 1707. Congress then established the basic stat-

utory framework for Section 307(b) (1). As enacted in

1970, the second sentence of Section 307(b) (1) provided

exclusive jurisdiction in the appropriate court of appeals

for review of agency action taken under two sections of

the Act, Sections 110 and 111(d), 42 U.S.C. §§$ 1857c-5,

1857c-6(d) (1976). According to the Conneonie Re-

port, Section 307(b) (1) was inserted by the Senate in

its bill** to “specify forums for judicial review of

certain actions of the [EPA].” H.R. Rep. No. 91-

1783, 91st Cong., 2d Sess. (1970), reprinted in A Legis-

lative History of the Clean Air Amendments of 1970, at

151, 207 (1974) (emphasis added). The conference com-

mittee also noted that the House bill did not contain a

comparable provision. /d.

The Senate debate on S. 4358 indicates that the judicial-

review provision contemplated appellate court review of

those administrative actions taken after development of a

conteniporaneous administrative record containing all

technical and other relevant information:

I prefer the judicial review framework in the bill

for I believe that through the administrative process

the [EPA] can develop on the record all of the tech-

nical and other relevant information necessary to

achieve a sound judgment. Similarly, and in accord-

23 §. 4358, 91st Cong., 2d Sess., § 308 (1970).

ance with general administrative law, such decision

of the [EPA], should be reviewable in the court of

appeals so that the interests of all parties can be

fully protected. With the record developed by the

[EPA], the court, as an unbiased, independent insti-

tution, is the appropriate forum for reviewing such

decision and making a judgment as to its quality.

The normal rules of the court also provide the great-

est amount of insulation from the political pressures

that will undoubtedly surround a judgment of this

type. At the same time, judicial review provides for

full procedural and substantive due process for all

interested parties. I therefore recommend to the

Senate that the provision in the bill be retained.

I think the Committee on Public Works is to be

commended for accompanying the stringent substan-

tive provision regarding the air pollution control

program with several procedural requirements and

opportunities to clearly incorporate due process pro-

tection in the application of the proposed law. In

three areas provision is made to seek relief from, or

review of, administrative actions or the application

of the statute. The first of these is a general judicial

review provision so that administrative promulga-

tions and decisions made pursuant to the [A]ct may

be reviewed while maintaining the basic integrity of

the [A]ct. In section 308 the committee recognizes

that administrative actions will affect the interests of

persons and that such actions should, [t]herefore, be

reviewable.

(116 Cong. Rec. 33117 (1970) (remarks of Senator

Cooper), reprinted in Senate Comm. on Public

Works, 93rd Cong., 2d Sess., A Legislative History

of the Clean Air Amendments of 1970, at 285, 386

(1974) (emphasis added).)

The sections of the Act enumerated in the first and

second sentences of Section 307(b) (1) required notice

and an opportunity for public hearing before EPA could

take the action which would be subject to initial review

in courts of appeals. See, e.g., Sections 110 and 111(d) of

the then-extant Act, 42 U.S.C. §§ 1857¢c-5 and 1857c-6

(d) (1976). Moreover, agency action taken pursuant

to these sections was subject to the Administrative Pro-

cedure Act, 5 U.S.C. § 553, and an administrative record

was required to be developed on a contemporaneous basis.

Thus, the Senate in adopting the judicial-review provision

ensured that each section specifically enumerated in Sec-

tion 307(b) (1) was one under which EPA’s actions would

be taken only following the development of a compre-

hensive administrative record.** This interpretation of

24 The Senate Report accompanying S. 4358 also evinces an intent

to provide judicial review in courts.of appeals for actions taken on

the basis of an explicit administrative record:

One of the uncertainties in the existing Clean Air Act is the

availability or opportunity for judicial review of administra-

tively developed and promulgated standards and regulations.

Moreover, the effect on the general program of a review itself

is not clear.

The Committee does not intend by this language to provide a

statutory provision that establishes administrative promulga-

tions or decisions as conclusive and thereby effectively extin-

guishing the right of review. Rather, the presumption of cor-

rectness established is rebuttable by proof that the administra-

tive promulgation or decision is not supported by a preponder-

ance of its evidence. It should also be noted that evidence re-

garding any exclusion or omission of relevant material from

the administrative record may be adduced to challenge the

sufficiency of the administrative record.

(S. Rep. No. 91-1196, 91st Cong., 2d Sess. 40-41 (1970) reprinted in

Senate Comm. on Public Works, 93rd Cong., 2d Sess., A Legislative

History of The Clean Air Amendments of 1970, at 397, 440-41

(1974) (emphasis added).)

The language in the Senate report is premised on the assumption

that the courts of appeals are the appropriate forums for review

because a comprehensive record would be made available to them.

Where such a record was available, there would be little need for

further fact-finding or discovery to prove out the basis for the

Agency’s action, in contrast to the need for such steps where more

informally taken administrative action was at issue.

Congressional intent would be consistent with the cus-

tomary role of the courts of appeals in reviewing actions

where factual issues had been resolved by the Agency on

a contemporaneously compiled administrative record.

2. The revision made by the Clean Air Act Amend-

ments of 1977.

The 1977 Amendments made two additions to the

limited number of specified actions of the Administrator

which are subject to initial review in the U.S. Court of

Appeals for the D.C. Circuit.% In addition, they

incorporated a reference in the first sentence of Section

307(b) (1) to “any other nationally applicable regula-

tions, or final action taken, by the Administrator”. Pub.

L. No. 95-95, § 305(c) (1), 91 Stat. 776 (August 7, 1977).

A similar reference was added to the second sentence

of Section 307(b) (1) regarding review of locally or

regionally applicable actions in the “appropriate” circuit.

Pub. L. No. 95-95, § 305(c) (2), 91 Stat. 776 (August 7,

1977).

The legislative history for the addition of these phrases

contains no suggestion that Congress desired to divest

the district courts of any jurisdiction and to trans-

fer jurisdiction instead to courts of appeals. Certainly

nothing supports a broad or expansive reading of these

clauses. While EPA avoids most of the legislative his-

tory, recourse to the language of the phrases standing

alone could be read to refer to (1) only the actions under

the specifically enumerated sections, or (2) actions of the

Administrator taken under the enumerated sections,

where he chose to give notice in the Federal Register, or

(3) actions under the enumerated sections, plus indis-

25In the 1977 Amendments Congress added a referezce to Sec-

tion 120 of the Act, 42 U.S.C. § 7420, both to the first sentence of

Section 307(b)(1) and to the second sentence of that Section. See

EPA’s Br. at 22 n.17 (second paragraph).

pensable review of other closely allied actions, or (4) ac-

tions under the enumerated sections plus actions beyond

those covered by those sections where the action taken was

analogous to that taken under the sections listed with

particularity, or (5) all actions of whatever nature taken

by the Administrator, even if not specifically listed or

covered by analogy with an enumerated provision, wheth-

er or not he chose to give notice of the action in the

Federal Register. Each of these interpretations, plus

others, is conceivable under the language of the clauses.

However, only optional interpretations (2), (3), and (4)

above represent constructions of the phrases which can

be reconciled with other judicial review provisions of the

Section and the Act. Other optional interpretations, such

as EPA’s proffered interpretation (5) above, introduce

conflict and contradiction into the statutory terms.

The legislative history conflicts with EPA’s proffered

extreme interpretation of Section 307(b) (1), ie., inter-

pretation number (5) above. It is very unlikely that

Congress would expand so radically the jurisdiction of

the courts of appeals, and divest the district courts of

jurisdiction, without some consideration and discussion

in the legislative history.** More importantly, the only

26 EPA attempts to generate a legislative history which supports

its interpretation of Section 307(b)(1). In support of its argu-

ment, EPA relies upon an ill-fated judicial review provision in

a 1976 House Committee bill, H.R. 10498, 94th Cong. 2d Sess.

(1976). See EPA’s Br. at 17. EPA invites the Court to infer that

Congress subsequently abandoned the approach of specifying with

particularity actions to be reviewed in courts of appeals. EPA

posits that by adding the “other final action” clauses to Sec-

tion 307(b)(1) as part of the Clean Air Act Amendments of

1977, Congress intended that all actions be reviewable in the courts

of appeals. EPA’s reliance on the 1976 House bill reaches much too

far and obfuscates the history of Section 307(b) (1).

In H.R. 10498, the House Committee did attempt to add specifi-

cally enumerated items to the list of reviewable actions in Section

307(b) (1). EPA fails to point out that the bill passed in 1976 by

the Senate had no comparable provision and that the judicial review

discussion of the amendment to Section 307(b) (1)

adopted in 1977, found in the Report of the House Com-

mittee on Interstate and Foreign Commerce,” states that

the Amendments were “intended to clarify some questions

relating to venue for review of rules or orders under the

[A]ct”. H.R. Rep. No. 95-294, 95th Cong., 1st Sess., at

323, reprinted in [1977] U.S. Code Cong. & Ad. News

1077, 1402 (emphasis added). The complete text of the

pertinent comments in the House report is as follows

(the footnotes have been retained) : *°

Subsection (c) of section 305 of the bill is intended

to clarify some questions relating to venue for review

of rules or orders under the act. Paragraph (1) of

that subsection makes it clear that any nationally

applicable regulations promulgated by the Adminis-

trator under the Clean Air Act could be reviewed

only in the U.S. Court of Appeals for the District of

Columbia. These would include, to mention but a

few examples, regulations to carry out the non-

attainment policy referred to in section 117 of this

bill and regulations to effectuate motor vehicle as-

sembly-line test provisions of section 206 of the act

provision of the House bill failed to survive consideration by the

conference of differences in the 1976 House- and Senate-passed ver-

sions. See H.R. (Conf.) Rep. No. 94-1742, 94th Cong. 2d Sess. at

124-25 (1976). The Conference Committee gave no explanation

for its deletion. Jd. The 1976 bill then was not enacted by Con-

gress. EPA espouses mere speculation in trying to read anything

into this abortive legislative history.

27 This amendatory language originated in the House. The ex-

planatory portions of the Conference Report contain no reference

to adoption of these provisions from the House bill. H.R. (Conf.)

Rep. No. 95-564, 95th Cong. Ist Sess., at 177-178 (Conference Re-

port), reprinted in [1977] U.S. Code Cong. & Ad. News, 1502,

1558-1559.

28 EPA has presented a distorted picture of the Houze Commit-

tee’s intent by omitting in the quotation in EPA’s Br. at 20 all

those parts of the House Report which make clear that this portion

refers to venue rather than jurisdiction, i.e., the first sentence of

the first paragraph and the third, fourth, fifth, and sixth para-

graphs of the pertinent material.

or inspection/maintenance requirements under sec-

tion 208 of this bill.

Subsection (c) (2) of.section 305 provides for es-

sentially locally, statewide, or regionally applicable

rules or orders to be reviewed in the U.S. court of

appeals for the circuit in which such locality[,] State,

or region is located. This provision applies, except

as otherwise provided in paragraph (4), to the Ad-

ministrator’s action in approving or promulgating an

implementation plan for any State.

On the other hand, if an action of the Administrator

is found by him to be based on a determination of

nationwide scope or effect (including a determina-

tion which has scope or effect beyond a single judicial

circuit), then exclusive venue for review is in the

U.S. Court of Appeals for the District of Columbia,

under paragraph (4).

In adopting this subsection, the committee was in

large measure approving the portion of the Adminis-

trative Conference of the United States recomen-

dation section 305.76-4(A), that deals with venue.’

The commitee’s view also concurs, however, with the”

comments, concerns, and recommendation contained

in item No. 1 of the separate statement of G. Wil-

liam Frick, which accompanied the Administrative

Conference’s views."

Also, as indicated earlier, the committee bill incor-

porates recommendation D2 of the Administrative

Conference on extending the period for petitoning

for judicial review in the court of appeals.

However, in no event should these provisions be con-

strued as endorsement of the remainder of the Ad-

ministrative Conference’s recommendations. Some of

these recommendations, such as those contained in

items B and C, were simply not considered by the

committee. Others (such as the recommendations in

D1 and D3[)] were rejected.

10 See 41 Fed. Reg. 56767-69 (December 30, 1976).

11 Jd, at 56768.

12 See supra [sic] in this section for a discussion of the com-

mittee’s views on item D3. On recommendation D3, largely for

the reasons stated in the separate statement of G. William

Frick, the committee oposed [sic] the Conference’s recom-

mendation. See also Getty Oil Co. v. Ruckelshaus, 467 F.2d

[349] (3d Cir. 1972) [,(cert. denied, 409 U.S. 1125 (1973) ];

Lloyd A. Fry Roofing Co. v. EPA, 415 F. Supp. 799 (W.D. Mo.

1976) [,aff’'d, 554 F.2d 885 (8th Cir. 1977) ]}.

(Id. at 323-324, [1977] U.S. Code Cong. & Ad. News,

at 1402-1403) (emphasis added).)

The House report thus discusses the amendments to

Section 307(b) as venue provisions. The Report ad-

dresses allocating review of administrative actions

having only local or regional impact to the circuit

where the impact is felt, while relegating review of ad-

ministrative actions of nationwide scope or effect to the

District of Columbia Circuit. This overriding concern is

reinforced by the reference in the Report to “the portion

of the Administrative Conference of the United States

recommendation section 305.76-4(A), that deals with

venue.” Id. at 324, [1977] U.S. Code Cong. & Ad. News,

at 1403 (footnote omitted).

The Administrative Conference of the United States

recognized the distinction between the venue and juris-

diction provisions of Section 307(b) (1). Its recommen-

dations completely severed the two. While Recommen-

dation A was titled “Yenue in the Courts of Appeals,”

Recommendation E was titled “Actions Subject to Court-

of-Appeals Review” and proposed expanding the juris-

diction of the courts of appeals to include several

additional specific agency actions which were reviewable

in district courts. See 41 Fed. Reg. at 56768. Recom-

mendation A of the Administrative Conference, which is

set out at 41 Fed. Reg. 56768 (December 30, 1976) ,°°

provides in pertinent part as follows:

3. Congress should amend section 307(b) of the

Clean Air Act [42 U.S.C. § 1857h-5(b)] to make

explicit that the Administrator’s action in approving

or promulgating state implementation plans is re-

viewable in the circuit containing the state whose

plan is challenged. (Brackets in the original.)

Recommendation E on the other hand dealt specifically

with a transfer of initial-review jurisdiction from district

courts to courts of appeals. However, the House report

expressly disavowed any endorsement of the Administra-

tive Conference’s recommendations other than Recom-

mendation A. See supra, at 30-31 (quoted text accom-

panying n.12 of quote). Thus, Congress did not intend or

attempt to expand the jurisdiction of the courts of appeals

provided by the Act.*°

Notably, the House Report mentions specifically that

““fs]ome of these [the Administrative Conference’s] recom-

mendations, such as those contained in items B and C,

“° The complete text of the Administrative Conference’s recom-

mendations is reprinted, infra, at Appendix B to this brief.

* Congressional selectivity in the approval of the Administrative

Conference’s recommendations was made evident by the contempo-

raneous deliberations on the Federal Water Pollution Control Act

Amendments of 1977, Pub. L. No. 95-217, 91 Stat. 1566 (the

“Clean Water Act’). Among the venue recommendations of the

Administrative Conference was the proposal to amend Section

509(b) of the Clean Water Act, 33 U.S.C. § 1369(b) to provide for

centralized review of all national standards under the Clean Water

Act in the Court of Appeals for the District of Columbia Circuit.

41 Fed. Reg. 56767, 56768 (December 30, 1976). Such an amend-

ment was proposed by Senator Kennedy during the Senate’s floor

debate on the Clean Water Act of 1977. 123 Cong. Rec. S13598-

18605 (daily ed. August 4, 1977). Despite the Administrative Con-

ference’s recommendation, the Senate declined by a substantial

margin (59-36) to adopt the amendment. Jd. at 13604, 13605.

were simply not considered by the [House] committee.”

Id. Recommendation B is captioned ‘“‘Choice between Dis-

trict Court and Court of Appeals for Review”, and

Recommendation C is captioned “Limitation of Non-

Statutory Review.” (1 C.F.R. § 305.76-4, Recommenda-

tions B, C; Appendix B, infra, at 8a-9a.)

Moreover in Recommendation E, the Administrative

Conference made one explicit suggestion for a change in

the actions subject to review in courts of appeals under

Section 307(b) (1). Recommendation E.2 proposed a re-

vision of Section 307(b) (1) to shift review jurisdiction

from district courts to courts of appeals for new-car

emission standards only:

2. Congress should amend the Clean Air Act to make

those new-car emission standards not now re-

viewable under section 307(b) [42 U.S.C.

§ 1857h-5(b)], reviewable in the courts of ap-

peals.

(1 C.F.R. § 305.76-4, Recommendation E.2.; Appen-

dix B, infra at 10a (brackets in original) .)

Recommendation E.2. was among those which the

House Committee said it had not considered. See supra,

at 30-31. The Recommendation refers to the parenthetical

exclusion in Section 307(b) (1) (first sentence), which

provides for review in the D.C. Circuit of “any standard

under section 202 (other than a standard required to

be prescribed under section 202(b) (1))”. Congress leit

this language intact in 1977. The resulting potential in-

consistency in the Section, which would arise with adop-

tion of EPA’s expansive construction of the “other final

action” clause, has been discussed supra, at 20-23.

The intent of the Administrative Conference is un-

mistakable. Professor Currie had prepared a report for

the Conference which served as the basis for comments

by interested persons and then for the deliberations of

the Conference itself. His report has been reprinted as

an article in the Jowa Law Review: Currie, Judicial Re-

view Under Federal Pollution Laws, 62 Iowa L. Rev.

1221, 1225 n.387 (1977). The report contains a section

specifically addressing the parenthetical exclusion in

Section 307(b) (1) for a “standard required to be pre-

scribed under section 202(b)(1).”** See id. at 1228-

1229. Professor Currie observed that:

Two alternative inferences may be drawn from this

exception, since it clearly is not an accident: that the

excepted standards are reviewable under general

federal law in the district courts, or that they are

not reviewable at all.

(Id. at 1228.)

Upon analysis, Professor Currie determined that there

were several areas of possible dispute regarding the

excepted emission standards. Because of the constitu-

tional implications of completely precluding review, and

because Congress had not shown the requisite clear and

convincing intent to block judicial review of the potential

disputes, he concluded that review in the federal district

courts under general federal law was available for the

excepted standard-setting action. Jd. at 1228-1229. None-

theless, he saw no apparent reason why review should

take place in district courts rather than the circuit courts.

Id. at 1228. The Administrative Conference obviously

agreed. Despite these urgings Congress did not act to

remove the exception.

31 Section 202(b)(1) then as now called on EPA to prescribe

emission standards for hydrocarbons, carbon monoxide, and nitro-

gen oxides from “light-duty vehicles”.

The 1977 Amendments added language to Section 202(b)(1) re-

quiring EPA also to prescribe (1) substitute emission standards for

NO, applicable to cars built by small manufacturers, and (2) test-

procedure regulations for measuring evaporative emissions of hydro-

carbons. See infra, at 41.

A slightly different situation is presented by two pro-

visions of the Clean Air Act which, prior to the 1977

Amendments, had provided an express and explicit mecha-

nism for judicial review, separate and apart from Sec-

tion 307(b) (1). The first of these provisions was in

Section 110(f) of the then-extant Act, 42 U.S.C. § 1857c-

5(f) (B) (1976), which provided for review of determi-

nations respecting state applications for postponement of

implementation plan requirements in “the United States

court of appeals for the circuit which includes such State

upon the filing in such court within 30 days from the

date of such decision of a petition by any interested

person.” The House initiated changes to Section 110(f)*

which among other things deleted the special review pro-

vision.** No explanation was offered for making the dele-

tion. The changes, including the deletion, were adopted

as part of the 1977 Amendments. The special review

provision previously in Section 110(f) of the Act con-

sequently has been removed.

The other special review provision was (and still is)

found in Section 206(b) (2) (B) (ii), 42 U.S.C. § 7525 (b)

(2) (B) (ii). This provision, like that previously in Sec-

tion 110(f), was added by the 1970 Amendments to the

Act. It authorizes review of determinations respecting

suspension or revocation of motor vehicle compliance

certificates upon petition by “the manufacturer” in “the

32 The Section is now codified at 42 U.S.C. § 7410(f).

33 The pertinent portion of the 1977 Amendments is found at

Pub. L. No. 95-95, §§ 107, 108, 91 Stat. 691, 693 (1977).

These amendments to Section 110(f) originated in H.R. 6161,

§ 115, 95th Cong. Ist Sess. (1977). Neither the discussions of this

provision in the House Committee Report, H.R. Rep. No. 95-294,

95th Cong., Ist Sess. 12-13, 202-03 (1977), nor in the Conference

Report, H.R. (Conf.) Rep. No. 95-564, 95th Cong. Ist Sess. 125

(1977), disclose the reasons for deleting the special judicial review

provision previously in Section 110(f).

United States court of appeals for the circuit wherein

such manufacturer resides or has his principal place of

business” in “any case of actual controversy as to the

validity of [such] determination.” ** Congress did not

amend this provision in any respect in 1977. It left it

intact. Congress presumably was aware of this provision

when it adopted the 1977 Amendments, and nowhere in

the legislative history is there any suggestion that the

review contemplated by Section 206(b) (2) (B) (ii) is in

any respect inconsistent with that prescribed in Section

307 (b) (1).

Finally, the preamble to the Administrative Confer-

ence’s recommendations noted that the actions reviewable

by courts of appeals under Section 307(b) (1) had certain

common characteristics:

Not every action of the EPA under the Clean Air

Act ... is made reviewable in the courts of appeals.

Some of the omissions appear to be inconsistent with

the general statutory plan, and corrective amend-

ments are desirable.

(41 Fed. Reg. at 56768 (emphasis added).)

Substantively, the Administrative Conference was, of

course, referring to Recommendation E, which was not

adopted by Congress. Nonetheless, the Conference recog-

nized the existence of a “general Statutory plan”. It also

pointed to one common characteristic, shared by each sec-

tion enumerated in Section 307(b) (1) (pre-1977 Amend-

ments) as to which review was to be had in courts of

34 The full text of this provision is set out supra, at 22-23.

8° Professor Currie had noted the existence of review provisions

in Sections 110(f) and 206(b)(2)(B)(ii) in his report for the

Administrative Conference. See 62 Lowa L. Rev. at 1223 n.31.

Congress seemingly had Professor Currie’s report available to it,

because the House Committee specifically referred to then-EPA

General Counsel Frick’s comments on the report and the Adminis-

trative Conference’s action. See supra, at 30.

appeals. That common element was that each of the

specified actions of the Administrator had to be taken

in compliance with the Administrative Procedure Act and

thus would have been taken upon a complete and con-

temporaneously compiled administrative record.*®

In the 1977 Amendments, Congress made changes in

Section 307 which emphasized its insistence upon a defi-

nite and contemporaneously compiled record to support

particular rulemaking actions by EPA. A new Section

was added which established procedural requirements for

the actions explicitly enumerated in Section 307(d) (1)

(A)-(M). The procedural requirements set out in Sec-

tion 307(d) are more stringent than, and displace, those

of the Administrative Procedure Act.*”. As one might ex-

36 This was so except for the then-existing reference to Section

119(c)(2)(A), (B), and (C). See 42 U.S.C. § 1857h-5(b) (1976),

referring to 42 U.S.C. §§ 1857c-10(c)(2)(A), (B), and (C).

37 In a recent decision, the D.C. Circuit explained the new re-

quirements as follows:

The purpose of the amendments [adding Section 307(d)]

was to facilitate judicial review by defining “what the record

for a rule consists of, and how and when material must be

placed in the record.” H.R. Rep. No. 294, 95th Cong., 1st Sess.

318, 319 (1977). The statute requires the inclusion of some

materials, and the exclusion of others, so that the record for

judicial review will comprise only those materials directly

pertinent to the agency’s decision. In summary, it requires the

EPA to compile a docket on or before the date a proposed rule

is published in the Federal Register. The materials in the

docket must be open to public inspection until the final rule is

promulgated, and with one exception, they become the record

for judicial review after such promulgation. The docket must

include the proposed rule, a statement of its basis and purpose

(including a summary of the factual data on which the pro-

posed rule is based, the methodology used with the respect to

those data, and the major legal interpretations and policy con-

siderations underlying the rule), all comments written by the

public and submitted during the comment period, a transcript

of any public hearing on the proposed rule, the text of the final

rule, a statement of the basis and purposes of the final rule,

an explanation of major changes from the proposed rule, and a

pect, a number of the rulemaking actions specified for

special judicial review in the first sentence of Section 307

(b) (1) are also specified for particular administrative

procedures in Section 307 (d) (1).

Accordingly, in the 1977 Amendments Congress built

on and confirmed its intent expressed in connection with

the 1970 Amendments that judicial review in courts of

appeals take place on a definite and contemporaneously

compiled administrative record. Congress in 1977 added

Section 307(d) to place on EPA the obligation to base

certain of its decisions upon just such a record. Of

greatest importance here is the fact that Congress ex-

pressed no intent to expand the scope of Section 307

(b) (1) to transfer to courts of appeals review of actions

other than those taken by EPA within the bounds of a

definite record.

3. The consequent technical amendments adopted

in November 1977.

The Clean Air Act Technical and Conforming Amend-

ments of 1977, Pub. L. No. 95-190, § 14, 91 Stat. 1393,

1399, made a number of further revisions to the Clean

Air Act. Included in these technical amendments was

the addition of several enumerated sections to both the

first and second sentences of Section 307 (b) (1).38 The

legislative history behind these technical amendments is

sparse. A Summary and Statement of Intent was in-

serted in the Congressional Record, and in pertinent part

states that Congress was adding provisions calling for

review in courts of appeals of particular actions:

response to every major comment, criticism, and new datum

submitted during the comment period.

American Petroleum Institute v. Costle, No. 79-1104, slip o inion

at 4-5 (D.C. Cir. November 6, 1979) (footnote — ,

38 Pub. L. No. 95-190, § 14(a) (79) and (80), 91 Stat. at 1404.

——

(79) and (80) Implements conference agreement

to make clear that judicial review is available for

new provisions, as well as old, dealing with hazayd-

ous emissions standards and new sources and other

requirements and for delayed compliance orderg and

penalties and smelter orders. Also implements con-

ference agreement providing for review of grant or

denial of locally applicable orders in the appropriate

circuit court, and review of nationally applicable

regulations in the D.C. Circuit Court. \

(123 Cong. Rec. H. 11,956 (daily ed. November ‘i,

1977) reprinted in [1977] U.S. Code Cong. & Ad.\

News 3661, 3666.)

Also, on the Senate floor, Senator Byrd of West Vir-

ginia offered a statement by Senator Muskie (who was

absent from the Senate debate due to illness) which “ex-

plain[ed] these amendments.” 123 Cong. Rec. S18372

(daily ed. November 1, 1977). In the explanation Senator

Muskie assured the Senate that “[it] is not the purpose

of these amendments to re-open substantive issues in the

Clean Air Act.” Id. He also stated that only “necessary”

technical amendments were being made:

All of the comments of the Environmental Protec-

tion Agency and private citizens have been reviewed

by the Committee staff. Many have been rejected

because they attempt to raise policy issues. Only

those amendments that are necessary to correct tech-

nical errors or unclear phrases have been retained

in the package of amendments that is now before the

Senate.

Members of the Environment and Public Works

Committee have examined these amendments. If

there were any questions about the legitimacy of an

amendment, it was dropped from the list. (Jd. (em-

phasis added) .)

The technical amendments accordingly demonstrate that

less than three months after adding the “other final ac-

tion” clauses to Section 307(b) (1), Congress felt com-

pelled to specify several additional sections of the Act

in the judicial-review provision. If Congress had in-

tended the “other final action” clause to confer exclusive

jurisdiction on the courts of appeals to review every final

action of the Administrator, the technical amendments

would not have been necessary.

C. EPA’s Extreme Interpretation Would Nullify Pro-

visions Of Section 307, As Well As Provisions Of

Section 206.

1. EPA’s proffered interpretation would create an

internal conflict in the terms of the first sentence

of Section 307(b)(1).

EPA’s expansive interpretation of Section 307(b) (1)

cannot be correct. It would create an internal conflict in

the terms of the first sentence of Section 307(b) (1). As

previously discussed, a portion of the first sentence speci-

fies that among the actions explicitly subject to review in

the D.C. Circuit is “any standard under section 202

(other than a standard required to be prescribed under

section 202(b)(1)).” If the “other . . . final action

taken” clause in the first sentence of Section 307(b) (1)

were interpreted as EPA here asserts, the foregoing

parenthetical clause excepting certain standards under

Section 202 would be nullified or effectively elided from

the statute. The specifically excepted standards would be

drawn back within the coverage of the special review pro-

visions by the tag-end general clause. This was definitely

not Congress’ intent, as illustrated by the House Com-

mittee’s explicit statement that it was not acting on the

Administrative Conference’s Recommendation E.2. pro-

posing deletion of the exception from Section 307(b) (1).

EPA has elsewhere tried to evade the logical thrust

of Congress’ failure to remove the exception by arguing

that the emissions standards issued under Section 202

(b) (1) are statutorily established. EPA asserted that its

action in actually issuing such standards is only minister-

ial in nature and need not be subject to any review. De-

fendant’s Reply Brief In Support of Its Motion to Dis-

miss, at 20, Rubber Manufacturers Association V. Costle,

Civil Action No. 79-189 (D. Del.). This argument is

discredited by the contrary analysis in Professor Currie S

report to the Administrative Conference, evidently avail-

able also to Congress, on this precise point. See supra,

at 33-34.

Moreover, EPA’s argument also is negated by Con-

gress’ amendments in 1977 to Section 202(b) (1). In

addition to the emission standards previously required

to be prescribed under that provision, the 1977 Amend-

ments required EPA to issue two further types of stand-

ards under Section 202(b) (1). Subparagraph (b) (1)

(B) authorizes the Administrator to issue substitute

emission standards for oxides of nitrogen for certain

small manufacturers, 7.e.,

for any light-duty vehicle manufactured during

model years 1981 and 1982 by any manufacturer

whose production, by corporate identity, for calendar

year 1976 was less than three hundred thousand

light-duty vehicles if the Administrator [makes cer-

tain determinations].

Then also, subparagraph (b)(1)(C) requires EPA to

issue regulations providing that the test procedures for

“evaporative emissions of hydrocarbons” shall measure

emissions “from the vehicle or engine as a whole.” *

39 Li he emission standards, these further standards are also

“sana > be prescribed” under Section 202(b) (1). Regarding

the substitute standards for nitrogen oxides, the statute states

expressly that the “Administrator shall prescribe [those] stand-

ards.” Section 202(b)(1)(B) (emphasis added). Regarding the

regulations governing test procedures for evaporative emissions,

2. EPA also asks this court to elide completely

— 206(6)(2)(B)(ii), (iii) and (iv) from the

The prior discussion shows that under EPA’ i

reading of the two “other final action” fio < Section

307(b) (1), the special review provisions in Section 206

(b) (2) (B) (ii), (iii) and (iv) would be nullified com-

pletely. See supra, at 22-23. Congress gave no indication

whatsoever that it intended such a result. See supra, at

35-36. The 1977 technical amendments were designed to

deal with such inconsistencies and conflicts created in

the Act by the 1977 Amendments. See supra, at 38-39

And indeed, Congress amended the review provisions of

Section 307 (b) (1) to add further enumerated actions

without dealing in any way with the separate review

provisions of Section 206(b) (2) (B). See supra, at 38-40

Senator Muskie’s explanatory statement of the technical

amendments (quoted supra, at 39.), reports that EPA

made numerous suggestions for changes, and that the

pertinent congressional committees had adopted those

changes which were “necessary.” Id. Repeals by implica-

tion are not favored, and this principle of tn Ret

struction carries especial weight when the Court is ur d

r° bern that a specific provision such as Section 206 (b)

bine id = "eae plan ig general provisions

action” i i

and ( . A : A baypoong States v. United pw th Tuna

Orp., S. 164, 168-169 (1976). See

Valley Authority v. Hill, 487 U.S. 153, bags "oun .

[202(b) (1) ( Ol. pete to carry out this subparagraph

and seventy rs _— tae pte later than two hundred

. a i ”

Section 202(b)(1)(C) lanatedie pore _ of this subparagraph.

* EPA, however, essential]

, however, y mounts a doubl

a. rings = provision of Section ao cegnmo hoagge

t e nullifying effect of its expansive ¢ io

Section 307(b) (1), EPA’s proffered interpretation of fede aiken

oe ho

would also have the effect of negating Section 206(b) (2) (B).

Again, EPA’s arguments reach too far. Properly construed, Sec-

tion 307(e) does not bear on Section 206(b)(2)(B) at all.

Section 807(e) is the portion of the statute which speaks of the

authority in the Act for judicial review of EPA’s orders and regu-

lations adopted under the Act. See supra, at 22. EPA says the

subsection “reinforces a congressional intention to place judicial

review of all final agency decisions in the courts of appeals.” EPA’s

Br. at 22 n.17. This assertion has utterly no support. The subsec-

tion itself does not purport to affect any review measures except

those set out in the Act. The basis for review in district courts

stems from general statutes (the Administrative Procedure Act

and the federal-question jurisdictional statute) which obviously are

not part of the Clean Air Act.

Moreover, EPA’s assertions based on Subsection 307(e) fail for

another equally fundamental reason. Subsection 307(e) was added to

the Act by Section 303 of the 1977 Amendments, Pub. L. No. 95-95,

§ 303(d), 91 Stat. 685, 772. That section of the 1977 Amendments

was captioned “Citizen Suits” (id. at 771), and chiefly made various

revisions to Section 304 of the Act, as amended, 42 U.S.C. § 7604,

which authorizes such citizen suits. Section 307(e) of the Act was

added by the last provision of Section 303 of the 1977 Amendments.

In contrast, the amendments to the judicial review provisions of

Section 307(b)(1) of the Act were made by Section 305 of the 1977

Amendments, which section was captioned “Administrative Proce-

dures and Judicial Review.” Pub. L. No. 95-95, § 305, 91 Stat. 685,

772-777. Thus, the placement in the Amendments of the provision

adding Section 307(e) is very instructive, and shows that Congress

was trying to forestall use of citizen suits brought under Section

304 of the Act as an alternative means to obtain judicial review

of regulations and orders otherwise subject to review under Sec-

tion 307(b)(1) of the Act.

Under the Act as it stood prior to the 1977 Amendments, the

question had arisen whether there could be concurrent jurisdiction

in the court of appeals and the district court when EPA had acted,

but where a “citizen” alleged that the action had not gone far

enough in an area where EPA was under a statutory duty to act.

See, e.g. Oljato Chapter of Navajo Tribe v. Train, 515 F.2d 654,

661 n.9 (D.C. Cir. 1975) (Wright, J.) (suggesting concurrent juris-

diction). See Currie, Judicial Review Under Federal Pollution Laws,

62 Iowa L. Rev. 1221, 1247-49 & n.216 (1977). By adopting Sec-

tion 307(e) of the Act as part of the amendments regarding citizen

suits, Congress was rejecting the suggestion in the Oljato case and

providing that review under the judicial-review provision should

oust jurisdiction under the citizen-suit provision.

In sum, as properly construed, Section 307(e) of the Act does

not bear on, let alone nullify, the special review provisions separately

placed in Section 206(b) (2)(B) of the Act.

D. By Rejecting EPA’s Exhortations For An Expansive

Reading Of Section 307(b)(1), The Court Of Appeals

Construed The Statute In Accord With Decisions

By Other Courts Of Appeals.

In putting forward its arguments, EPA notably fails to

cite any decisions by the courts of appeals construing

judicial-review provisions of this and comparable stat-

utes. The omission is for good reason—the decisions of

the courts of appeals uniformly support the reasoning

and approach of the Fifth Circuit.

1. The courts of appeals have carefully avoided

making any expansive interpretations of the

special judicial-review provisions in the Clean

Air Act, the Clean Water Act, and the Noise Con-

trol Act, despite EPA’s efforts.

Courts of appeals have “narrowly” or “strictly con-

strued” the similar judicial-review jurisdictional pro-

visions found in the Clean Air Act, the Clean Water

Act, and the Noise Control Act. See, e.g., Utah Power &

Light Co. v. Environmental Protection Agency, 553 F.2d

215, 219 n.19 (D.C. Cir. 1977) (Clean Air Act—con-

strued “narrowly”) (Leventhal, J.); Crown Simpson

Pulp Co. v. Costle, 599 F.2d 897, 900 (9th Cir. 1979)

(Clean Water Act—“strictly construed”) ( Duniway, J.)

cert. pending, No. 79-797; Chrysler Corp. v. Environ-

mental Protection Agency, 600 F.2d 904, 914 (D.C. Cir

1979) (adopting a “strictly limited” and “narrow inter-

pretation” of the comparable provision of the Noise Con-

trol Act) (Robinson, J.). In these cases, the courts of

appeals dismissed petitions for review of actions on the

ground that the actions at issue were not covered by the

special provisions of the acts calling for review i

courts of appeals.*! . “a ii

41 Judicial review was to be had in distri

strict courts under th

federal question statute, 28 U.S.C. § 1331(a), and the Passa

AO a An eal eet te OD Lea este a

The courts of appeals have cited two particular

grounds for narrowly construing judicial-review pro-

visions calling for initial jurisdiction in courts of ap-

peals. First, administrative records of actions taken by

an agency on an informal basis can be sketchy or vir-

tually non-existent; they thus provide no effective basis

for review. See Crown Simpson Pulp Co. v. Costle, supra,

599 F.2d at 904.42 Second, the Clean Air Act, the Clean

Water Act, and the Noise Control Act all contain review-

preclusion provisions which bar any subsequent review of

tive Procedure Act, 5 U.S.C. §§ 701-706. See Califano v. Sanders,

430 U.S. 99 (1977); Andrus v. Charlestone Stone Products Co.,

436 U.S. 604, 607-608 n.6 (1978).

42 The court in Crown Simpson compared on this ground the

prior decision in Washington V. Environmental Protection Agency

(Scott Paper), 573 F.2d 583 (9th Cir. 1978), with the ruling in

Ford Motor Co. v. Environmental Protection Agency, 567 F.2d 661

(6th Cir. 1977).

Use of the nature of the record available for review as a factor

in construing the judicial review provisions of a statute is con-

sistent with a number of decisions by courts of appeals. For

example, in Investment Company Institute v. Board of Governors

of the Federal Reserve System, 551 F.2d 1270 (D.C. Cir. 1977),

the court of appeals construed the Bank Holding Company Act to

provide for review of a rulemaking order under a special judicial-

review provision addressed to “orders.” Id. at 1278. A substantial

eight-volume record of informal rulemaking was available. Jd. The

court distinguished United Gas Pipe Line Co. V. Federal Power

Commission, 181 F.2d 796 (D.C. Cir.), cert. denied, 340 U.S. 827

(1950), in which the court of appeals refused to review regulations

promulgated after informal rulemaking on the ground that the

available record did not fully encompass the issues. The United

Gas Pipe Line decision probably is not viable insofar as it refuses

to recognize that some administrative record is available even

where an agency’s decision is not required to be based on a definite

record. See Citizens to Preserve Overton Park v. Volpe, 401 U.S.

402 (1971). But the type of record available for review should be

a factor in construing statutory provisions governing where (in

courts of appeals or district courts) review should be had initially.

See Currie and Goodman, Judicial Review of Federal Administra-

tive Action: Quest for the Optimum Forum, 75 Colum. L. Rev. 1,

54-61 (1975).

an action by EPA that is reviewable in a court of appeals

under the judicial-review provisions of those Acts. These

are harsh provisions, and the constitutionality of the pro-

visions 1s in question as the D.C. Circuit noted in Chrys-

ler Corp. v. Environmental Protection Agency (the

court’s footnotes have been included) :

(T]he Supreme Court has suggested that the consti

tutional validity of the srettaion review towel

of the Clean Air Act Amendments merits serious

consideration.” Although, in Yakus_v. United

States *! the Court sustained the constitutionality of

a similar provision in the Emergency Price Control

Act of 1942,*° that holding may be distinguishable

on the ground that the Yakus provision was a “war

emergency measure.” The nagging presence of a

substantial due process question indicates, then, at

peed aa a — propriety of a narrow interpre-

of Section a) [the judicial-revi st

of the Noise Cound “Gn Pee en

8 See Adamo Wrecking Co. v. Uni

- V. United States, supra not

presto US. at 289, 98 S.Ct. at 575, 54 L.Ed.2d at 551

Me ae Bg es z Ry roe constitutional validity of

§ ir Act had been raised b titi

I think it would have merited i «A ora

serious consideration”) :

Utah Power & Light Co. v. EPA, supra note 57 180 U, S Pig

D.C. at 74 n.19, 553 F.2d at 219 n19 (“tr judicial

opinions have tended to construe [th ; .

. . e

vision of the Clean Air Act] —_aa review pro-

$1 321 U.S. 414, 64 S.Ct. 860, 88 L.Ed. 834 (1944),

82 § 204, 56 Stat. 23 (1942), 50 U

. . : S.C.App. § 924 (S

II[)] (1942), as amended by the Inflation Control ary a

1942, 56 Stat. 765 (19

IIT)} (1949), 1942)» 50 U.S.C.App. § 961 et seg. (Supp.

83434 U.S. at 290, 98

(concurring opinion). S.Ct. at 575, 54 L.Ed2d at 651

(600 F.2d at 913 (emphasis added) .)

Phe: short, EPA has pressed on a number of courts “an

Pansive reading” of the jurisdictional provisions of

the Clean Air Act, the Clean Water Act, the Noise Con-

trol Act. See Chrysler Corp. v. Environmental Protec-

tion Agency, supra, 600 F.2d at 911. Courts have re-

buffed these efforts by EPA, even where the private

parties also joined the Agency in such jurisdictional con-

tentions. See, e.g., Crown Simpson Pulp Co. v. Costle,

supra, 599 F.2d at 900. This Court similarly should

reject EPA’s argument for the broadest possible inter-

pretation of Section 307(b) (1) (see supra, at 27-28), and

in doing so, uphold the wisdom and results of a number

of years’ experience of the courts of appeals with com-

parable cases.**

2. Other decisions by courts of appeals construing

the amended Section 307(b)(1) are consistent

with the Fifth Circuit’s decision in the present

case.

In the present case the Fifth Circuit attempted to

determine what type of action was within the “any other

final action” language of the statute by reference to the

legislative history of the 1977 amendments. However,

the legislative history spoke only of venue for review, not

jurisdiction. (See 587 F.2d at 243 n.6, Pet. App. 15a-

16a.) As the Fifth Circuit observed, the legislative his-

tory “complete[ly] fail[s] to mention what EPA asserts

was a massive shift in jurisdiction to the courts of ap-

peals.” (Id. at 248 (footnote omitted), Pet. App. 15a.)*

43 This Court previously has pointed to “the wisdom of allowing

difficult issues to mature through full consideration by the courts

of appeals.” E.J. du Pont de Nemours & Co. v. Train, 430 U.S.

112, 135 n.26 (1977).

44 As a matter of statutory construction, this Court also has

presumed that Congress would not make a similarly important

change in settled statutory law without stating its intent expressly

and in words which could not be misunderstood. See Takao Ozawa

v. United States, 260 U.S. 178, 194 (1922); Thompson v. United

States, 246 U.S. 547, 551 (1918). This is especially true insofar

as judicial procedure is concerned. Compare Mitchum v. Foster,

The court accordingly turned to other aids to statutory

construction. It concluded that the amended statutory

provisions must be read in light of the limited ability of

a court of appeals to develop facts, a limitation recog-

nized by Congress when it framed the Act’s judicial-

review jurisdiction provisions in 1970. In the court’s

view the determination regarding jurisdiction should re-

flect the capability provided a district court to call into

play discovery procedures to compile and verify the basis

for the Agency’s decision where a contemporaneous ad-

ministrative record had not been maintained.

Other courts of appeals have construed Section 307

(b) (1) in a manner consistent with this ruling. In

United States Steel Corp. v. Environmental Protection

Agency, 595 F.2d 207 (5th Cir. 1979), the petitioners

filed for review of EPA’s action in promulgating regula-

tions designating areas in Alabama as nonattainment

areas for suspended particulates. The court found that

it had jurisdiction under Section 307(b) (1) of the Act

to review the agency action. 595 F.2d at 212. It dis-

tinguished this decision from its prior decision in the

PPG case on the basis of the type of agency action taken

and the resulting administrative records involved in each

case. The court noted that the record in the PPG case

consisted solely of exchanged correspondence, *®

407 U.S. 225, 236 n.21 (1972), and Ex Parte Collett, 387 U.S. 55,

68, 70-71 (1949), with United States v. Sisson, 399 U.S. 267, 292-

293 n.22 (1970).

45 See the discussion supra, at 45 n.42, regarding the nature

of the record available for review as a useful factor in construing

the special judicial-review provisions of a statute.

46 Because there was a substantial record in the U.S. Steel case,

derived from a rulemaking proceeding, the court found that the

considerations that gave rise to the result in the PPG case were

absent. 595 F.2d at 212. The court explicitly acknowledged the

difference in the nature of the two actions. In the PPG case EPA

had determined that a certain regulation was applicable to a spe-

cific plant, while in the U.S. Steel case EPA had promulgated regu-

lations having a general effect in the specified areas. Jd.

MIR ER ID «+

Similarly, in Sharon Steel Corp. Vv. eee ae

Protection Agency, 597 F.2d 377 (8d Cir. 1979), s nw

company petitioners sought review of a final rule os

by EPA embodying the determination that ag atinsteon®

i i uspen

lvania were nonattainment areas or s

heen The Third Circuit pags + rae ee a

. . ? . . . . tinguis e

jurisdictional issue, and in doing so, dist hed tl

ar ee it from the Fifth Circuit’s prior decision “#

the PPG case on grounds similar to those set out In be

Fifth Circuit’s U.S. Steel decision. See 597 che gh os

n.3. The Third Circuit took the caren diecaath : i

° ; . . c

e was not applicable in the case before 1 |

pony case had taken action which the Agency hig mr

nominated as rulemaking subject to 5 U.S.C. § 5538. a

court opined that the PPG case stood pee we eee

‘ Pg irae Re i

Section 307(b) did not give jurisdic to ¢

prgedlana to review the interpretation and application .

regulations, where the Agency was acting on an informa

basis. Id.

i ted to date in-

uently, in the three cases repor

Men the “other ... final action” clause of Section

307(b) (1), the courts of appeals have reached oyna

which provide a reasoned and practical es cee

for deciding which of the many types > bested

iewed in courts 0

are properly to be reviewed in- =

i t courts. If an ac

ich are to be reviewed in distric ;

he by EPA was necessarily based bie a Prd ae

judi lemaking proce 4

vided by an adjudicatory or a ru

i the courts of appeals.

the action would be reviewed in

ou action reflects informal proceedings not sel ”

the basis of a contemporaneously yer rea =

i informal adjudication 1

tive record, such as the in a teas ae

e, then district courts must u

aa dae. This is precisely the result advocated

: a general matter by two distinguished ee

Sec Currie and Goodman, Judicial Review Of Federa

wae =

Administrative Action: Quest F }

‘ or The

1h Golem. b. Rev, 1,8661 195) ee

Such a construction of the “other final action”

would give effect to. Congress’ intent in siseallcgem

special judicial-review provisions as part of the 1970

Amendments to the Act. See supra, at 24-27. The

actions listed with specificity in Section 307( b) (1)

and thus specially subject to review in the courts of

appeals, all must be based on administrative proceed-

ings reflecting at least notice and an opportunity for

ry See supra, at 26 & n.24, 37 & n.36, and infra

. & n.48, The only arguable exception relates to ac-

eo under Section 112(c) regarding hazardous pollutants

hn Rage at 53 & n.48), which was added to the

nose y Congress without explanation as part of the

technical amendments. See supra, at 20-21, 38. In

the circumstances, the rule of ejusdem generis should be

applied to limit the general “other final action” phrase

to reach only matters similar to those covered . the

ip specifically enumerated references. Application

0 the rule of ejusdem generis here would serve Congress’

intent in enacting Section 807(b) (1) to provide a special

route for judicial review in courts of appeals for as

erated actions taken on a contemporaneously compiled

administrative record. See Fitch Co. v. United State

323 U.S. 582, 585-586 (1945) ; Smith v. Davis, 323 US

111, 116-117 (1944) ; United States v. Salen, 235 US.

237, 249 (1914) ; United Steves v. Stever 229 U.S 167,

174-175 (1911) ; Bigelow v. Forrest, 9 Wall. (76 US.)

339, 848-349 (1869). Compare United States v. Powell

423 U.S. 87, 90-91 (1975) ; United

U.S. 680, 682-684 (1950). } ited States v. Alpers, 338

This construction would also best F

intent not to act in the 1977 ee a Ad

ministrative Conference’s recommendations regardin

cific changes in the allocation of jurisdiction ‘ae Sal

courts of appeals and district courts. See supra, at 29-88,

Moreover, it would preserve the special judicial-review

provision in Section 206(b) (2) (B) of the Act, and the

parenthetical exclusion in Section 307(b) (1) for action

by EPA to establish emission standards and to prescribe

other regulations under Section 202(b)(1) of the Act.

The “other” actions of Section 307(b) (1) would not in-

clude actions under Section 206(b) (2) (B) or Section 202

(b) (1).

47 This construction of Section 307(b) (1) would also give effect

to the House Committee’s expressed intent that certain nationally

applicable regulations be reviewed in the D.C. Circuit under the

provisions of the first sentence of Section 307(b)(1). The three

specific examples cited by the House Committee (see supra, at 29-30

(first quoted paragraph) ) each related to regulations which would

have had to be adopted in compliance either with the Administrative

Procedure Act, 5 U.S.C. § 553, or with the more stringent proce-

dural requirements of Section 307(d) of the Act. The first example

refered to regulations promulgated under Part D ( Sections 171-178)

of the Act, 42 U.S.C. §§ 7501-7508, to implement the statutory re-

quirements for nonattainment areas (i.e., areas where air quality

does not meet national ambient air quality standards). The second

example concerned regulations to carry out a program for testing

emissions of motor vehicles coming off assembly lines. The statu-

tory basis for such regulations is Section 206(b)(1) of the Act,

42 U.S.C. § 7525(b)(1). Congress was aware of regulations already

adopted by EPA on this subject, and wanted EPA to develop re-

vised regulations. See H.R. (Conf.) Rep. No. 95-564, 95th Cong.,

ist Sess., at 171 (1977). The final example pertained to regulations

to implement a proposed mandatory program for inspection and

maintenance of light duty vehicles to insure that the vehicles were

complying with emissions standards. See H.R. 6161, 95th Cong., 1st

Sess., § 208 (1977); H.R. Rep. No. 95-294, 95th Cong., lst Sess.,

at 20-21 (1977). This portion of the House bill was retained in

the version passed by the House, but it was deleted in the confer-

ence committee and consequently was not enacted. See H.R. (Conf.)

Rep. No. 95-564, 95th Cong., 1st Sess., at 162-172 (1977).

Importantly, a full administrative record would have been

available in each of the three rulemaking instances cited by the

House Committee. Notably also, the reference by the House Com-

mittee to review of regulations establishing a program for testing

emissions of motor vehicles coming off assembly lines conspicuously

omits any reference to review of the application of such regulations

to any particular instance. The omission is understandable. Review

of the application of such regulations is governed by the special

judicial-review provisions set out in Section 206(b) (2) (B) of the

Act.

Several other interpretations of Section 307(b) (1) are

available which also do less violence both to the words of

the Section and to Congress’ intent in adopting it than

EPA’s broad reading does. In Utah Power & Light Co. v.

Environmental Protection Agency, 553 F.2d 215 (D.C.

Cir. 1977), Judge Leventhal’s opinion for the court held

that an action by EPA in applying new source stand-

ards was reviewable in a district court and not in the

court of appeals, because the action in applying (as con-

trasted to setting) the standards was not enumerated

specifically in Section 307(b) (1). In adopting the 1977

Amendments and the 197’ technical amendments, Con-

gress expressed no intent to overturn this holding. -It

thus continues to be viable as a possible reading of the

statute.

Also, in Chrysler Corp. v. Environmental Protection

Agency, 600 F.2d’ 904 (D.C. Cir. 1979), the court’s opin-

ion notes prior Suggestions that actions closely related

to those specifically enumerated might also be reviewed

in courts of appeals, especially where the related action

was taken on the same record or on a record very similar

to that of an enumerated action. Id., 600 F.2d at 910 &

n.56. This jurisdictional argument has been raised before,

but not decided by, this court in E.J. du Pont de Nemours

& Co. v .Train, 480 U.S. 112, 125 n.14 (1977). Nonethe-

less, the phrase “other final action” in Section 307(b)

(1) could be read to accord with these suggestions.

3. EPA’s criticism of review in district courts is

mistaken and misplaced.

The thrust of EPA’s arguments is directed toward ad-

vocacy of an expansive reading of Section 307(b) (1),

such that the review-preclusion clause would also be

broadly applicable. However, EPA also criticizes review

in the district courts. The Agency offers five separate

objections, none of which withstand evaluation.

a en a ee ae

} i ; tion, the record

First, despite EPA’s contrary assertion,

in this case is skeletal, as the court of appeals found. See

supra, at 5-6. Compare EPA’s Br. at 24.

, EPA says the record in the present case is

Pee that which ened be ee rg nig -

i nder Section 111(j) an Act,

vat. rr 7411(j), 7412(c), both of which ape

listed with particularity in the second sentence o ge

807 (b) (1). See EPA’s —“ : 24. oe a ig on

i 11(j) and 112(c) were l

ner ae See Clean Air Act Pe gre tose

Conforming Amendments, Pub. L No. 95-190, Swi

(80), 91 Stat. 1393, 1404. Accordingly, there is “on conga

legislative history for the additions. See — a 4 a

Moreover, EPA’s assertions as to record simi “g" y ot

patently wrong insofar as actions taken under igs 2

111(j) are concerned. Section 111 (j) calls on t _

ministrator of EPA to make specific findings regar to

whether a waiver from the requirements of new _—

standards should be granted “to encourage the use yh '

innovative technological system” to reduce spgge ee -

tion 111(j) (1) (A), as amended, 42 US.C. § 4

(1) (A). The statute expressly requires these vag :

tions to be made “after notice and opportunity for Pan .

hearings.” Jd. Therefore, a contemporaneously _

administrative record would be available for cou :

appeals review and must form the basis of a ee.

tion by the Administrator under this section. Compa

EPA’s Br. at 15 n.11.

i i lls for sev-

ion 112(c) is somewhat different. It ca

Peovyornd of actions by the Administrator which we

reflect statutorily specified findings.** Although, unlike

, a

48 Subparagraph 112(c)(1)(A) allows a _—— to yan -

w source or modify an existing source which will emi —

vitelioe only where “the Administrator finds that such so

Section 111(j), nothing is said in Section 112(c) about

prior notice and an opportunity for a hearing, this Sec-

tion does emphasize the necessity for certain factual find-

ings by EPA. These findings presumably must be made

with the aid of an administrative record sufficient to

support them. Otherwise, a court of appeals would not

be able to carry out its review. Section 112 focuses

entirely on “hazardous air pollutants’, and one can

only conclude that Congress wanted special review

because of the nature of the pollutants involved.

Congress elsewhere has made exceptional provisions ap-

plicable where such hazardous pollutants are involved.

See Adamo Wrecking Co. v. United States, 434 U.S. 275,

282-283 (1978).

Third, EPA claims that the discovery procedures avail-

able in district courts would not advance judicial review.

EPA’s Br. at 24. This contention does not square with

the experiences of courts or of private litigants. Con-

trary to EPA’s implications, discovery in district courts

is not available to develop a new record for review, but

rather to compile and verify the information and con-

tentions which were before the agency at the time of the

decision. In short, discovery serves the purpose of veri-

fying the contemporaneous record, where the agency it-

self has not kept a current docket of materials and may

not have had any intention of basing its decision only on

if properly operated will not cause emissions in violation of [a

hazardous air emission] standard.”

Subparagraph 112(c)(1)(B) provides that a source may not

emit air pollutants in violation of standards issued under Section

112. When taken together with Section 113(a) (3), as amended,

42 U.S.C. § 7413(a)(3), Subparagraph 112(c)(1)(B) authorizes

EPA to issue remedial administrative orders regarding such vio-

lations.

Subparagraph 112(c)(1)(B) (ii) authorizes the Administrator

to grant a waiver of up to two years to comply with a hazardous

air emission standard where he finds that such period is necessary

for the installation of controls and that steps will be taken during

the period of the waiver to assure that the health of persons will

be protected from imminent endangerment.

items in a discrete record.*® Discovery for this purpose

is entirely consistent with Federal Power Commission V.

Transcontinental Gas Pipeline Co., 423 U.S. 326, ssi

(1976) ; Camp v. Pitts, 411 U.S. 138, 141-143 (1973) ;

and Citzens to Preserve Overton Park v. Volpe, 401 U.S.

402, 420 (1971).°

Discovery also serves the very important purpose of

allowing a factual record to be developed regarding ripe-

ness” claims and other similar contentions by agencies

urging dismissal of review actions. — A district court

could assess the hardship to the parties of granting or

denying immediate review by taking evidence on the a

pact of the challenged rule. A court of appeals mig t

be able to address this question on the basis of affidavits.

However, affidavits often cannot be obtained and only

the compulsory discovery processes of the district courts

are capable of supplying needed facts. Congress dealt

49 the Fifth Circuit has stated in a prior decision,

eg the agency for a statement of reasons a its bol

sion would risk after the fact rationalization, which ; e ae —

gathering powers of a trial court can more easily oer —

the Bay, Inc. v. Administrator of Environmental Protection Ag "

556 F.2d 1282, 1292 (5th Cir. 1977) (citation omitted).

i so observed that the agency’s response to a re-

ie ee court for formal findings or an ee poe

explanation “will, to some extent, be a ‘post hoc ee eee

thus must be viewed critically.” Citizens To Preserve Overton Pa

v. Volpe, 401 U.S. 402, 420 (1971).

50 f the district court before which the companion case

to Hog fi al. one is pending rejected EPA’s Motion For a rigs

tective Order barring discovery, and ordered EPA p Pagani ba

interrogatories directed solely to identifying materia $ avai =

to EPA at the time it made its determinations regarding the Mes ~

heat boilers. PPG Industries, Inc. v. Costle, Civil Action No. 7 7

(W.D. La.) (order dated May 22, 1979, denying EPA’s motion for a

protective order).

51 ili f the compulsory discovery processes available to

Pe gfe Poet rey ae in Rubber Manufacturers Ass’n hs

Costle, Civil Action No. 79-189 (D. Del. filed April 17, stag oe

that action twelve rubber companies sought review in the |‘ me ict

court of EPA’s action in issuing a “Control Technique Guideline

with this problem in the Administrative Orders Review

Act by allowing a court of appeals to remand to a dis-

trict court for a hearing on the disputed question. See

28 USAC. $ 2347(b) (3). A reviewing court of appeals

acting under Section 307(b) (1) of the Clean Air Act

does not have that option.

Fourth, EPA argues that judicial review in courts of

appeals would give rise to more prompt, definitive rulings

than review in district courts. See EPA’s Br. at 24-25

This contention contradicts explicit conclusions of the

court of appeals in the present case. The Fifth Circuit

feared that courts of appeals generally would not be

able to provide prompt review, and Suggested that de-

layed review would be costly and judici

psc y prejudicial to the

At this level [i.e., the court of appeals], only af

hearing, which may be long delayed because of po

calendar commitments, can it be known whether the

record is sufficient for review purposes. An insuf-

ficient record may necessitate a remand for fact-

for emissions of volatile organic compounds f i

ing plants. The plaintiff companies weuades Goh Ge

ing the Guideline the effect of a binding rule by taking a rc a

of steps to insure that States incorporated it into revisions of their

State Implementation Plans. EPA moved to dismiss the action in

district court, contending among other things that its action in

issuing the Guideline was not ripe for review. Affidavits could

not be obtained from State officials. Three officials of States were

~ gpa deposed, giving testimony regarding the steps by which

er was seeking to secure incorporation of the Guideline into

Implementation Plans as a regulatory requirement, and also

regarding the impact of these steps and the Guideline on States

and regulated parties. Briefing of EPA’s motion to dismiss and

of a per by the parties for summary judgment has been

2a eted, and a hearing on the several motions was held on

ovember 19, 1979. No decision has been rendered to date.

Obviously a court of a i i

ppeals is not able to provide proced

yi ey to those used in the Rudber Miesiuiatiesene cog

op facts needed to resolve a dispute over justiciability.

52 Similar evidentiary problems arise i i

; “ : arise In connection with -

ings on a motion for stay in a court of appeals. In aauen

motion for preliminary injunction in istri

: : a district co :

the taking of testimonial evidence. am Soeet en Seen

ee ee

te Pcie Uh nO ER HO a eo e

finding and record completion and a second court

appearance, often before other judges, iong delayed.

(587 F.2d at 245, Pet. App. 20a.)

The Fifth Circuit is notable for the long delays (cur-

rently approximately 3 years) between the completion

of briefing in a case and the date of argument. The

present case was heard promptly only because the Fifth

Circuit granted PPG’s motion to expedite argument.®

Other circuits such as the Ninth Circuit are substantially

in arrears in hearing argument in “ready” cases. Com-

mentators have recognized that, from the viewpoint of

those responsible for or concerned with court administra-

tion, the time of a circuit judge is a scarce resource which

ought to be allocated wisely. See Administrative Con-

ference Recommendations 1975, 1 C.F.R. § 305.75-3

(Recommendation No. 75-8, fg). See also Currie and

Goodman, Judicial Review of Federal Administrative Ac-

tion: Quest For The Optimum Forum, 75 Colum. L. Rev.

1, 18-19, 24-25 (1975). EPA’s reading of the “other final

action” phrases of Section 307(b) (1) would require that

many minor matters be litigated in the couris of ap-

peals as an original matter, or review would be fore-

closed entirely. See supra, at 3-4 n.2. In short, as a

general matter the district courts offer opportunities

for more prompt adjudication than do the courts of

appeals, and the expenditures of judicial resources in ob-

taining a decision are considerably reduced. This is es-

pecially so in a case such as the present one, where PPG

had no choice but to file its: “protective” petitions for

review in the Fifth Circuit where action on pending mat-

ters is long-delayed because of the court’s backlog of

pending cases. The Fifth Circuit was the “appropriate”

circuit under Section 307(b) (1) because the facilities

at issue were located in Lake Charles, Louisiana.

53 Argument could not be expedited in many cases of this nature

in the courts of appeals or the courts’ dockets would be disrupted.

Moreover, simply presenting motions to expedite requires additional

time of the circuit judges which could better be spent working on

the merits of pending cases.

EPA’s contention also presuppo. i

i : a district court action a eee ae pga ni

: e circuit court. This assumption is erroneous. Nu-

=r environmental cases in district courts do not en-

PTT 9 The parties, presumably, will obtain a

Page" ecision from the district court, and, in prac-

mt : en appear to be satisfied at that point. Even

district court's decision adveres tp i ipa gem te

verse to it i }

Chemists Ass'n V. Costle, 455 Riad =o oe

1978), which certainly involved questions of broad a

ig and importance. As commentators have said :

Posing 8 review [involving an appeal from a district

ees oe means greater expenses and delay for

igants who persevere to the appellate stage but

€sser expense to the 90 percent who do not.” Curri

and Goodman, supra, 62 Colum. L. Rev. at 25 C :

EPA’s Br. at 26-27 n.20.% ee

ry ay EPA notes that review in district court would

= sa = ey respecting actions by the Agency which

nal’, Just as review in such a case

oe In a court of appeals. See EPA’s eae bo

piety and Conoco agree. This observation is irrelevant to

pone involved here. In this case, PPG has sought

view of a “final” action in district

lew “fi court, not i

porn is preliminary or otherwise not final. EPA tag

priate er into the decision of the court an “assump

nat review of non-final actions would bninatty

be available in district courts. Compare EPA's Be ye

26, with 587 F.2d at 242, Pet. App. 11a, =

In sum, just as EPA has e i i

, rred in urging an e 1

— of Section 307(b) (1), the Pests has pg

orward mistaken and misplaced policy criticisms of

review in district courts. us

. . . —

SOR TT Be he Nin ne ea a eet ee F

II. IF EXPANSIVELY CONSTRUED, THE REVIEW

PROVISIONS OF SECTION 307(b) RELATING TO

“OTHER FINAL ACTION” WOULD VIOLATE THE

DUE PROCESS CLAUSE OF THE FIFTH AMEND-

MENT

Section 307(b) places sharp limitations on the power

of the lower federal courts to entertain fact-based, statu-

tory, or even constitutional claims pertaining to certain

actions by EPA. Those actions by the Agency which are

subject to review under strict time constraints in courts

of appeals under the terms of Section 307(b) (1) cannot

subsequently be raised or presented as a defense in civil

or criminal cases for enforcement. See Section 307 (b) (2).

This Court has recognized Congress’ power under ar-

ticle III of the Constitution to restrict the jurisdiction

of lower federal courts. See Lockerty v. Phillips, 319

U.S. 182, 187-188 (1943). Also, this Court has ruled

that, at least in emergency war-time conditions, “restrict-

ing judicial review of [an] administrative determination

to a single court[,] . . . so long as it affords to those

affected a reasonable opportunity to be heard and present

evidence, does not offend against due process”. Yakus

v. United States, 321 U.S. 414, 483 (1944) (emphasis

added) (citations omitted).

The juxtaposed paragraphs of Section 307(b) do not,

however, afford the “reasonable opportunity to be heard”

which due process requires, at least when the “other

final action” clauses of Section 307(b) (1) are construed

as expansively as EPA urges. See Lindsey v. Normet, 405

U.S. 56, 66 (1972); American Surety Co. v. Baldwin,

287 U.S. 156, 168 (1932). If one accepts for purposes

of argument the Agency’s construction of Section 307

(b) (1), then many, very informally taken actions would

be brought within the coverage of the special and limited

review provisions of that Section. Like the determina-

tions in the present case, these actions would be “final”

in nature and thus subject to some review. But the

would have been taken without benefit of any voifernied

or other proceeding. Furthermore, the Agency’s decision-

maker typically would not have been constrained by an

need to confine consideration to materials in a ‘can

poraneously compiled administrative record. Indeed, the

rationale for the agency decision may not even be speci-

fied.* See, e.g., Citizens To Preserve Overton Park v.

Volpe, 401 USS. 402, 420 (1971). In these circumstances,

review will result in being forever foreclosed from ob-

taining review. Moreover, the notice given by the Agenc

regarding the action may not suffice to convey a nalaine

oe the sharply limited opportunity for review."¢

e “other final action” phrases of Section 307 (b) ( 1)

do not by themselves provide a sufficient warning. In

short, for every informal actions such as the one at issue

in this litigation, “a reasonable opportunity to be heard”

will not be present as a practical mater. As EPA would

construe it, Section 307(b) fails to provide due process

Moreover, Congress has made no findi

pelling need for such limited and 0 Eig Me

This Court’s decision in Yakus v. United States 321 US

414 (1944), upholding limited opportunities for revien,

may be sustainable as an exercise of the war powers

of Congress and the President found in Article I, § 8 and

55 j

In the present case EPA did not specify its rationale for the de-

termination as to what requirem :

waste-heat boilers haan ee would be applied to the

56 The Agency observes that it d

serve oes not always, ?

= song notice in the Federal eslatar that ay in

. See EPA’s Br. at 26. Where notice is not published in

aR a rl ah

Article II, § 2 of the Constitution. However, the present

circumstances are quite different. Other administrative

agencies with comparable responsibilities function with-

out such limitations on the reviewability of their actions.

The Occupational Safety and Health Administration

(“OSHA”) is an example."

Finally, the expansive reading which EPA would give

Section 307(b) (1) produces such a complicated and con-

voluted review and enforcement mechanism that an ag-

grieved party’s claim could be simply lost in a shuttle

among courts. The damage to affected parties is graphi-

cally illustrated where, as here, EPA has not given notice

in the Federal Register that it has informally taken a

final action under the Act. Given the nature of these in-

formal actions, this lapse is understandable. EPA reads

Section 307(b) such that the 60-day limitation on review

is tolled until notice actually is published in the Federal

Br. at 26 n.19.5° Nevertheless, if EPA subsequently

brings an enforcement action against the affected party,

57 Judicial review of OSHA’s orders issuing regulations and

standards is available directly in the courts of appeals under the

special terms of Section 6(f) of the Occupational Safety and Health

Act of 1970, 29 U.S.C. § 655(f). E.g. Industrial Union Department

v. American Petroleum Institute, Nos. 78-911 and 78-1036. Review

of standards is also available at the enforcement stage. See Atlantic

& Gulf Stevedores, Inc. Vv. Occupational Safety & Health Review

Commission, 435 F.2d 541, 550-551 (3d Cir. 1976).

58 PPG’s and Conoco’s due process claim also relates to the absence

of statutory standards for EPA’s decision whether or not to publish

notice in the Federal Register that it has taken action. At least

under EPA’s sweeping views of its powers under the statute, its

own standard-bereft decision regarding notice governs the jurisdic-

tion of federal courts. In PPG’s and Conoco’s view, Congress could

not transfer its power under article III, section 1 of the Constitu-

tion to prescribe the jurisdiction of the lower federal courts to

EPA, at least by a delegation of powers bereft of standards. See

Sibbach v. Wilson, 312 U.S. 1, 9-10 (1941); Panama Refining Co.

v. Ryan, 293 U.S. 388, 421 (1935). See also Brief for Petitioner in

the court of appeals, at 40-46.

Section 113 requires that the enforcement proceedings be

initiated in a district~eourt. Because of the operation of

the review-preclusion clause, Section 307 (b) (2), the dis-

trict court could not entertain any defenses based upon

the asserted invalidity of the agency action being en-

forced. Assuming that EPA does not then change its

now-stated position on the tolling of the 60-day limitation

in Section 307(b) (1), a concurrent petition for review

of the underlying agency action could then be brought in

a court of appeals. The affected party would have to ask

the district court to stay its hand in the enforcement

case pending action by the court of appeals on the

petition for review. EPA would have no contempora-

neously compiled record to certify to the court of ap-

peals for its review. Presumably therefore, the Agency

would have to try to reconstruct the record, perhaps

years after the action had been taken on an informal

basis. Where the court of appeals could not meaning-

fully review the Agency’s action, it probably would

have no choice but to remand to EPA for an explica-

tion of its action. After the proceedings before the

Agency on remand had taken place (these proceedings

surely would be colored by the enforcement action still

pending in district court), the record would go back

to the court of appeals for further review. After

new proceedings in the court of appeals and decision by

that court, the results would then be available to be

inserted as binding law in the district court enforcement

action. By the time the proceedings would have reached

this stage, the parties would be exhausted, the courts exas-

perated, and the environment unchanged (except perhaps

by the passage of years). Only the Agency presumably

would be pleased.

59 The Agency’s action on remand would be a post hoc rationaliza-

tion which would have to be carefully examined by the reviewing

court. See supra, at 54 n.49.

Aen eee AnD oedietre, t 2:

This entire convoluted scenario is neither necessary

nor inevitable. It would arise only if this Court accepts

the Agency’s expansive reading of Section 307 (b) (1).

The scenario does illustrate graphically why Parties af-

fected by informal Agency action as a practical matter

would be denied the opportunity to seek judicial review

of that action or the opportunity to present otherwise

available defenses. Constructed as EPA urges, Section

307 (b) would offend the due process clause.

CONCLUSION

The decision of the court of appeals should be affirmed.

Respectfully submitted,

- Of Counsel:

TTLIEB, STEEN & CHARLES F. LETTOW

pases JANET L. WELLER

i Connecticut Avenue, N.W.

1250 Connecticut Avenue, N.W. 1250 |

Washington, D.C. 20086 Washington, D.C. 20036

V. PETER WYNNE, JR.

One Gateway Center

Pittsburgh, Pennsylvania 15222

P. STOCKWELL

KWELL, SIEVERT, VICCELLIO, OLIVER

geen & SHADDOCK BERNARD H. MCLAUGHLIN, JR.

i ide Plaza

Lakeside Plaza One Lakeside a.

Take Charles, Louisiana 70601 Lake Charles, Louisiana 70601

Counsel for Respondent

PPG Industries, Inc.

GENE W. LAFITTE

J. BERRY ST. JOHN, JR.

One Shell Square, 50th Floor

New Orleans, Louisiana 70139

Counsel for Respondent

December 22, 1979 Conoco, Ine.

Liskow & LEWIS

One Shell Square, 50th Floor

New Orleans, Louisiana 70139

Appendices

APPENDIX A

PPG INDUSTRIES

PPG INDUSTRIES, INC.

INDUSTRIAL CHEMICAL DIVISION

P.O. Box 1000

Lake Charles, La. 70601

December 3, 1979

Ms. Diana Dutton, Director

Enforcement Division

U.S. Environmental Protection Agency

1201 Elm Street

Dallas, TX 75270

Re: Waste Heat Steam Generator ~

Change of Fuel

Dear Ms. Dutton:

This is to notify your office of a change of fuel oil on our

waste heat boiler No. 2 at Powerhouse C, PPG Industries,

Inc. Lake Charles facility. The natural gas supply was

| interrupted by the supplier and replaced by 0.7 wt. %

sulfur fuel oil. The duration of the fuel oil use was

from 10:00 a.m., November 30 to 6:00 p.m., December

1, 1979.

Very truly yours,

/s/ ¥F. Anne Corbello

F. ANNE CORBELLO

Environmental Control Assistant

FAC:as

ec: Mr. J. F. Coerver

Louisiana Air Control Commission

(re: State Permit No. 473)

bee: R. J. Samelson W. J. Peard/J. E. Wyche

V. P. Wynne H. Hank

C. Lettow E. L. Cook/D. Heffer

APPENDIX B

41 Fed. Reg. 56767-56769 (December 30, 1976) :

Title 1—General Provisions

CHAPTER III—ADMINISTRATIVE CONFERENCE

OF THE UNITED STATES

PART 305—RECOMMENDATIONS OF THE ADMIN-

ISTRATIVE CONFERENCE OF THE UNITED

STATES

PART 310—MISCELLANEOUS STATEMENTS

Miscellaneous Amendments

The Administrative Conference of the United States

was established by the Administrative Conference Act,

5 U.S.C. 571-576, to study the efficiency, adequacy and

fairness of the administrative procedure used by adminis-

trative agencies in carrying out administrative programs,

and to make recommendations for improvement to ad-

ministrative agencies, collectively or individually, to the

President, Congress, and the Judicial Conference of the

United States (5 U.S.C. 574(1)).

The Administrative Conference of the United States

at its Fifteenth Plenary Session, held December 9-10,

1976, adopted two Recommendations and one formal

Statement. Recommendation 76-4 recommends amend-

ments to the judicial review provisions of the Clean Air

Act and Federal Water Pollution Control Act. Recom-

mendation 76-5 urges Federal agencies normally to em-

ploy pre-adoption or post-adoption comment procedures

when promulgating an interpretive rule of general ap-

plicability or statement of general policy. The Confer-

ence Statement is addressed to procedures to deal with

an emergency shortage of natural gas.

1. The table of contents to Part 305 of Title 1, Chapter

III, CFR is amended to add the following sections:

Sec.

ici i Air Act

16-4 Judicial Review Under the Clean

ie and Federal Water Pollution Control Act

(Recommendation No. 76-4)

i licability

04.76-5 Interpretive Rules of General App

7 and fawn of General Policy (Recom-

mendation No. 76-5)

2 Section 305.76-4 is added to Part 305 to read as

follows:

ici i i Air Act

16-4 Judicial Review Under the Clean

eer and Federal Water Pollution Control Act

(Recommendation No. 76-4).

isi for judicial

(a) The Congress has enacted provisions

review in the Clean Air Act and the Federal Water Pol-

lution Control Act (FWPCA) that are in some respects

inconsistent, incomplete, ambiguous and unsound.

(b) Courts have sometimes felt constrained to stretch

these statutes to achieve sensible results. In other in-

stances, courts seem to have ignored sensible general con-

gressional direction in an attempt to do justice in ye

ticular cases. On yet other occasions courts have e

compelled by unclear provisions to reach undesirable re-

sults that Congress probably did not intend.

variety of problems in the interpretation and pong er

of the judicial review provisions, all of which are likely

to be addressed by Congress in the near future.

(d) This series of recommendations urges that, =

Congress reconsiders the judicial review provisions of e

principal pollution statutes, it rationalize, alter and ¢ ar-

ify them, guided especially by the principle that juris-

dictional provisions should draw bright lines to mini-

mize the waste and expense of litigation over whether a

case has been brought in the right court. One recom-

mendation is addressed to the Judicial Conference and

calls upon the courts, pending congressional action to

clarify their powers, to utilize their discretion to trans-

fer judicial review proceedings where transfer will avoid

undue duplication of litigation.

More specifically, the Conference has in view these

considerations:

1. Section 509(b) of the FWPCA provides that all

standards promulgated under it by the Environmental

Protection Agency, including national standards, are to

be reviewed in the United States Court of Appeals for a

circuit in which the petitioner resides or transacts busi-

ness. Under Section 307(b) of the Clean Air Act, on

the other hand, certain nationally applicable standards

are to be reviewed only in the Court of Appeals for the

District of Columbia Circuit, but the EPA’s actions in

approving or promulgating state implementation plans

are reviewable only “in the United States Court of

Appeals for the appropriate circuit.” Thus the FWPCA

provides for a decentralized review of national stand-

ards, whereas the Clean Air Act requires that analogous

standards be reviewed only in the D.C. Circuit. This in-

consistency in approach should be resolved; the advan-

tages of expeditious and authoritative review of all na-

tional standards in the D.C. Circuit suggests that it is

the FWPCA’s venue provision which should be amended.

All national standards under the FWPCA should be made

reviewable in the D.C. Circuit. Review of all other regu-

lations, standards and determinations that are reviewable

in the courts of appeals under the FWPCA should be in

the circuit containing the affected state or facility. These

amendments would entirely supplant the present pro-

Oo a ek ee

visions for review in the circuit in which the petitioner

resides or transacts business.

The Clean Air Act’s specification of ‘appropriate cir-

cuit” as the venue for review of state implementation

plan approvals has also created uncertainties, especially

when several plan approvals are challenged on identical

grounds. Although a perfect resolution is impossible, an

amendment, clarifying that the appropriate circuit is the

one containing the state whose plan is challenged, would

eliminate much of the prospect of threshold litigation

over the question of which is the appropriate circuit, and

would also avoid the splitting of cases into two different

forums whenever local and national issues are present in

the same case. The possibility of undue duplication of

proceedings that might result can be met by increasing

the flexibility of available transfer provisions to remove

doubts about the authority of any court of appeals to

transfer a case to any other court of appeals.

2. Section 304 of the Clean Air Act and Section 505

of the FWPCA authorize citizen suits in the district

courts to require the EPA Administrator to perform

“any act or duty under this Act which is not discre-

tionary.” Some district courts have accepted jurisdiction

under Section 304 over cases that amount to challenges

to the Administrator’s approval and promulgation of state

implementation plans, despite the provision of Section 307

for exclusive jurisdiction in the courts of appeals to re-

view such action. The citizen-suit provisions should not

furnish an alternative or premature method of review of

questions that can be raised by direct review of the

EPA’s actions in the courts of appeals.

The proper scope of the present citizen-suit provisions

is especially unclear in the context of standard-setting,

where the line between failure to act and failure to act

properly is dim. The difficulty of drawing such a dis-

tinction is ample reason for giving the courts of appeals

exclusive jurisdiction of actions to compel or to postpone

the issuance of regulations whose validity would properly

be determined in a court of appeals. It is recognized

that in its review of such issues a court of appeals might

conclude that the administrative record requires ampli-

fication. Since courts of appeals normally do not hold

evidentiary proceedings, provision should be made for

prior resort or remand to the EPA (or, if that is in-

appropriate, to the district court) to meet that need.

To prevent unfairness from a litigant’s choice of the

wrong court, Congress should provide for transfer be-

tween district courts and courts of appeals of petitions

and complaints filed under the Acts. The Court of Claims

transfer provision provides a good model.

3. Although both Acts provide expressly for review in

the courts of appeals and for citizen suits in the district

courts, it remains possible in some circumstances to ob-

tain non-statutory review under general federal question

jurisdictional statutes. But the citizen-suit provisions of

both Acts require the plaintiff to give the EPA 60 days’

notice of the intended district-court action. Congress

should make clear that where a non-statutory review ac-

tion is filed alleging grounds that correspond to those

appropriate for the filing of an action under such citizen-

suit provisions, failure to comply with the notice require-

ments of those provisions will require a dismissal of the

case.

4. The Clean Air Act and the FWPCA provide that

certain regulations reviewable by petition to the courts

of appeals “shall not be subject to judicial review in civil

or criminal proceedings for enforcement.” Moreover,

challenges to the validity of regulations must be made in

the court of appeals within 30 days (air) or 90 days

(water) after promulgation, unless the challenge is based

“solely on grounds arising after” the statutory period.

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The express preclusion of review at the enforcement stage

creates a highly unusual and unnecessary harsh restric-

tion on the right to challenge the validity of a regulation

to which one is subject. Congress should amend the Acts

to allow the validity of a regulation to be challenged in

defense to an enforcement proceeding. It should also

amend the Clean Air Act to extend the time limit for

filing petitions for review in the court of appeals to 60

days and, for consistency, amend the FWPCA to reduce

the 90-day period for filing a petition thereunder to 60

days. Finally, the time limits in both Acts should be

made inapplicable where the petitioner can show reason-

able grounds for failure to file a timely petition.

5. Not every action of the EPA under the Clean Air

Act or the FWPCA is made reviewable in the courts of

appeals. Some of the omissions appear to be inconsistent

with the general statutory plan, and corrective amend-

ments are desirable.

6. Each of the four judicial review and citizen-suit

provisions in the Clean Air Act and the FWPCA presents

a different standard for who may petition for review or

sue. This leads to undesirable confusion and inconsist-

ency in the administration of the Acts.

RECOMMENDATION

A. Venue in the Courts of Appeals

1. Congress should provide for centralized review of

national standards under the FWPCA, as is now provided

under the Clean Air Act, by amending Section 509(b)

[33 U.S.C. § 1869(b)] to provide for the review of all

such national standards in the Court of Appeals for the

District of Columbia Circuit.

2. Congress should further amend section 509 (b) of

the FWPCA to provide that review of regulations, stand-

ards or determinations affecting single states or facilities

be had in the circuit containing the state or facility.

3. Congress should amend section 307(b) of the Clean

Air Act [42 U.S.C. § 1857h-5(b)] to make explicit that

the Administrator’s action in approving or promulgating

state implementation plans is reviewable in the circuit

containing the state whose plan is challenged.

4. Courts of appeals, when reviewing cases arising

under the Clean Air Act or FWPCA, should utilize exist-

ing transfer powers to avoid undue duplication of pro-

ceedings, and Congress should amend the Acts or the

transfer statute [28 U.S.C. § 2112(a)] to remove doubts

about the authority of any court of appeals to transfer

such cases to any other court of appeals to avoid undue

duplication and in the interest of the administration of

justice.

B. Choice between District Court and Court of Appeals

for Review

1. Congress should amend the citizen-suit provisions

of the Clean Air Act [Section 304, 42 U.S.C. § 1857h-2]

and FWPCA [Section 505, 33 U.S.C. § 13865] to make

clear that, insofar as suits against the Administrator of

the EPA are concerned, these sections do not provide an.-

alternative or premature method of review of questions

that can be raised under the sections that provide for

direct review of the EPA’s actions in the courts of ap-

peals [Section 307(b), 42 U.S.C. § 1857h-5 (b) ; Section

509, 33 U.S.C. § 1369].

2. Congress should amend the Clean Air Act and

F WPCA to provide that courts of appeals have exclusive

jurisdiction of actions to compel or to postpone the issu-

ance or revision of regulations whose validity is to be

determined in a court of appeals. The amendments should

provide that where there is need for the development of

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a factual record, prior resort or remand shall be made to

the EPA or, if that is inappropriate, to the district court.

3. Congress should provide, by analogy to 28 U.S.C.

§$ 1506, for transfer between courts of appeals and dis-

trict courts when a proceeding to review EPA action

under the Clean Air Act or FWPCA is filed in the wrong

forum.

C. Limitation of Non-Statutory Review

Congress should amend the statutes to make clear that

when a non-statutory review action is filed alleging

grounds that correspond to those appropriate for the fil-

ing of a citizen suit under Section 304 of the Clean Air

Act [42 U.S.C. § 1857h-2] or Section 505 of the FWPCA

[83 U.S.C. § 1865], failure to comply with the notice

requirements of those sections will require a dismissal of

the case.

D. Raising Defenses at the Enforcement Stage

1. Congress should amenc the Clean Air Act and

FWPCA to permit the validity of a regulation to be

challenged in defense to an enforcement proceeding.

. Congress should amend Section 307(b) of the Clean

Ay io (42 U.S.C. § 1857h-5(b)] and Section 509 (b)

of the FWPCA [83 U.S.C. § 1369(b)] to prescribe 60

days as the period within which, under both statutes, a

petition for review must be filed in the courts of appeals.

8. Congress should amend the Clean ; Air Act and

FWPCA to ensure that petitions for review of regula-

tions may be filed after the expiration of the time limits

of Sections 307(b) and 509(b), when the petiitoner can

show a reasonable ground for failure to file a timely

petition.

10a

E. Actions Subject to Court-of-Appeals Review

1. Congress should amend section 509(b) of the

FWPCA [33 U.S.C. § 1869(b)] to make clear that the

following actions by the EPA are reviewable in the courts

of appeals:

a. Promulgation or approval of water-quality stand-

ards under Section 303 [33 U.S.C. 1313].

b. Promulgation of effluent guidelines under section

304 [33 U.S.C. 1314].

c. Promulgation of regulations governing the discharge

of oil or hazardous substances under section 311(b) [33

U.S.C. 1821 (b) ].

d. Promulgation of standards for marine sanitation

devices under Section 312 [33 U.S.C. 1322] or determi-

nations that a state may completely prohibit the discharge

from all vessels of any sewage under Section 312(f) [33

U.S.C. § 1822 (f) ].

2. Congress should amend the Clean Air Act to make

those new-car emission standards not now reviewable

under section 807(b) [42 U.S.C. § 1857h-5 (b)], review-

able in the courts of appeals.

F. Standing

Congress should adopt a single test of standing to gov-

ern all proceedings for judicial review under the Clean

Air Act and FWPCA.

SEPARATE STATEMENT OF G. WILLIAM FRICK

(1) Recommendation A.2. should be amended to pro-

vide that where “national issues” are involved they

should be reviewed in the D.C. Circuit. Recommendation

A.3. should be amended in the same fashion.

lla

Cases involving permits and permit ‘programs under

the FWPCA sometimes involve generic issues that apply

to EPA’s actions nationwide. For essentially the reasons

discussed in our comments on recommendation A.3., below,

we believe such issues should be reviewed in the D.C.

Circuit. This result could be specified, without disturbing

the general thrust of the Recommendation, by amending

$509 of the FWPCA as suggested in our comments of

November 12, 1976.

h approval and promulgation of State imple-

Be a (SIP’s) under the Clean Air Act usually

involve issues peculiar to the affected States, such actions

sometimes involve generic determinations of nationwide

scope or effect. Examples include EPA’s granting of two-

year extensions of the date for attainment of national

ambient air quality standards in a number of metropoli-

tan areas! and its promulgation of generic regulations

(applicable to all States) that require prevention of sig-

nificant deterioration of air quality (40 CFR 52.21). We

view such actions as virtually identical to promulgation

of “national standards”,? as to which recommendation

A.1. expresses a preference for review in the D.C. Cir-

cuit.

Under the existing law, it is po

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