Amicus Curiae Brief — American Mining Congress v. Thomas

Supreme Court, U.S,

FILED

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/ JUN 27 soge

No. 85-1741 _ |

ecstatic SPANIOL, JR,

ee CLERK

IN THE ais

Supreme Court of the Anited States

OCTOBER TERM, 1985

AMERICAN MINING CONGRESS, AMAX, INC., ASARCO

INCORPORATED, ST. JOE MINERALS CORPORATION,

F) Petitioners,

Vv.

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

BRIEF OF ALUMAX, INC. AS AMICUS CURIAE IN

SUPPORT OF PETITION FOR WRIT OF CERTIORARI

ALAN S. WARD

Counsel of Record

JEFFREY S. HOLIK

WILLIAM R. BAKER, III

BAKER & HOSTETLER

1050 Connecticut Avenue, N.W.

Suite 1100

Washington, D.C. 20036

(202) 861-1500

Attorneys for Amicus Curiae

Of Counsel:

GERALD J. KITCHEN

ALUMAX, INC.

400 El Camino Real

San Mateo, California 94402

(415) 348-3400

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

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TABLE OF CONTENTS

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B. The EPA Rulemaking Proceeding ............

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II The Fourth Circuit Did Not Review the Agen-

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A. The Fourth Misinterpreted the Notice Re-

uirements of the Administrative Proce-

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B. The Fourth Circuit Misinterpreted the

“Logical Outgrowth” Rule ...................000

III The Decision Below Creates a Conflict Among

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TABLE OF AUTHORITIES

CASES: Page

AFL-CIO v. Donovan, 757 F.2d 330 (D.C. Cir.

SIO. cvcnesunssiacecnancbiehiisnnasinaiiintmincaniialaamaiaasiiain 9, 12

American Frozen Food Institute v. Train, 539 F.2d

DOT GK... GI. TIT itccaenenstinncstvccnnes 8

BASF Wyandotte Corp. v. Costle, 598 F.2d 637 (1st

Cir. 1979), cert. denied, 444 U.S. 1096 (1980)

Chocolate Manufacturers Ass’n v. Block, 755 F.2d

a | RR SCs RR 7, 18, 14

Kennecott v. EPA, 780 F.2d 445 (4th Cir.

BTID insihtcasueccegenasetiessaiecuieibadiamadaatis 2. 6, 7, 10, 11, 18

Marathon Oil Co. v. EPA, 564 F.2d 1253 (9th Cir.

EDUC) stnnsnntustnnnianmiaaaetd 6

National Black Media Coalition v. FCC, No. 85-4121

Ch Gar. Biter BT, SO) asstancecicssrsssnesinoniisens 9, 12

National Tour Brokers Ass’n v. United States, 591

Pie GOS GAL... Gib. BRT. cecsrintienteicteireins 6

Small Refiner Lead Phase-Down Task Force v. EPA,

705 F.2d 506 (D.C. Cir. 1988) ............... 6. 7, 9, 12

South Terminal Corp. v. EPA, 504 F.2d 646 (1st

CK, - IFW -nckincasravcesccsnecnnsniaarnetinsaaaaanen 9

Taylor er & Salvage Co., Inc. v. Dept. of Labor,

699 F.2d 622 (Sth Cir. 1979) ......cccccccccccccseeees 9

Wagner Electric Corp. v. Volpe, 466 F.2d 1013 (3d

CORE, FIPUUD <intsarccocsanssccsneenueinsiebeesadnunnnaaiian 9

STATUTES:

Administrative Procedure Act, Pub. L. No. 89-554,

80 Stat. 388, 5 U.S.C. §§ 551, et seq. _.......... 2

Clean Water Act of 1977, Pub. L. No. 95-217, 91

Stat. 1567, 33 U.S.C. §§ 1251-1876 © ............... 2

S URAL. Be aevcsssssessereecentonnenananieas 6

SB TAs. Be ibkiswiciccsceti erie 3

SB UBC. STR cetrccitstneccicdiinees 3

iii

Table of Authorities Continued

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RULES AND REGULATIONS:

48 Fed. Reg. 7073 (February 17, 1983) ........0.......

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IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1985

No. 85-1741

AMERICAN MINING CONGRESS, AMAX, INC., ASARCO

INCORPORATED, ST. JOE MINERALS CORPORATION,

Petitioners,

¥.

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

BRIEF OF ALUMAX, INC, AS AMICUS CURIAE IN

SUPPORT OF PETITION FOR WRIT OF CERTIORARI

STATEMENT OF INTEREST OF AMICUS CURIAE

Amicus Alumax, Inc. (“‘Alumax’’)' respectfully sub-

mits this Brief of Amicus Curiae in support of the

petition for a writ of certiorari.? Alumax is an inte-

grated producer of aluminum and aluminum products.

Its operations are subject to a broad range of federal

laws and regulations, including those administered by

respondent Environmental Protection Agency. Alu-

1 Alumax is a publicly held company. Alumax is affiliated with

petitioner AMAX, Inc. in that AMAX, Inc. owns 50% of Alu-

max’s outstanding stock.

2 Pursuant to Rule 42, the written consent of the parties is

filed concurrently with this brief.

max frequently participates in federal administrative

rulemaking proceedings and consequently has a sub-

stantial interest in the process by which federal reg-

ulations are developed under the Administrative

Procedure Act.

ARGUMENT

I. Summary of Argument

A. Introduction

This case, reported below as Kennecott v. EPA, 780

F.2d 445 (4th Cir. 1985), presents an issue of fun-

damental importance under a major federal environ-

mental statute and the governing procedures of the

Administrative Procedure Act, 5 U.S.C. §§ 551, et seq.

(‘“APA”’). The case arises out of petitions to review

national standards (known as effluent limitations

guidelines) set by the Environmental Protection

Agency (“EPA” or “Agency’’) for the nonferrous

metals industry in a rulemaking proceeding under the

Clean Water Act, 33 U.S.C. §§ 1251-1376; 40 C.F.R.

§ 421.

In proposing these effluent limitations EPA sought

comment on six specific technologies for the control

of water pollution effluents. The Clean Water Act

requires limits to be based on the best technology

achievable, taking certain factors into consideration.

After receiving comments on the proposed technolo-

gies, and determining that industry would not be able

to meet proposed limits with those technologies, EPA

decided to adopt and promulgate regulations based on

a substantially different technology, sulfide precipi-

tation, about which the public had not been placed

on notice, and that had not been the subject of any

comment.

i einai

Several parties filed petitions for review of the reg-

ulations in the United States Court of Appeals for

the Fourth Circuit, pursuant to 33 U.S.C. § 1369(b),

and the Fourth Circuit upheld EPA’s action. In so

doing, the Court merely deferred to the Agency’s

claimed expertise, and failed to hold the Agency to

the notice and fairness requirements of the APA.

Since the technology adopted by EPA was never ex-

posed to comment because of lack of notice, the court

based its determination on a fatally deficient admin-

istrative record and thus was not in a position to

determine whether the rule was the product of an

informed and reasoned judgment.

B. The EPA Rulemaking Proceeding

The Clean Water Act requires the national effluent

guideline regulations to ‘“‘identify ... the degree of

effluent reduction attainable through the application

of the best control measures and practices achieva-

ble.” 33 U.S.C. § 1814(bX2\A). In promulgating these

regulations, EPA must identify the best control meas-

ures and practices achievable, and then based on the

technology chosen, set the actual discharge limits. The

identification of the control measure is the crucial

step because the actual effluent limits are, by statute,

based on the particular technology selected. Although

the control technology from one industry may be

“transferred’’ to another if the processes are similar,

EPA may choose to have different discharge limits

for the two different industries.

On February 17, 1988, EPA, pursuant to section

304 of the Clean Water Act, 33 U.S.C. § 1314, pro-

posed twelve sets of nationally applicable effluent

guideline regulations for ‘‘Nonferrous Metals Manu-

facturing.” In the rulemaking at issue, EPA published

—<— =.

in the Federal Register proposed effluent limitations

and specified the six pollution control technology op-

tions it was considering, and it requested specific

comments on them or any other alternative technol-

ogies.®

Following the publication of notice in the Federal

Register, EPA distributed a proposed Development

Document, not published in the Federal Register. That

3-volume, 2100 page document generally identified 25

existing treatment technologies, including a process

known as sulfide precipitation. The Federal Register

notice specified the six particular technologies being

considered, and it set forth the limits those technol-

ogies could achieve. Sulfide precipitation was never

mentioned in that notice.

At no time following the distribution of the pro-

posed Development Document was sulfide precipita-

tion mentioned as an alternative or supplement to the

six options, nor did any of the voluminous comments

submitted discuss sulfide precipitation.

C. Decision Below

In denying the petitions for review, the Fourth Cir-

cuit rejected the claim that the petitioners had not

’ The proposal included a list of both “‘in-process’’ systems and

“in-place” systems considered for proposal, and then specified

the six “control and treatment options” that were selected for

final consideration, and requested comments on those. ‘The

Agency specifically requests long-term sampling data (especially

paired raw wastewater-treated effluent data) from nonferrous

metals manufacturing plants having well-operated treatment sys-

tems using the treatment technologies relied upon for this reg-

ulation, and also other equally effective treatment technologies.”’

48 Fed. Reg. 7073 (1983).

been placed on notice of the new technology and held

that they “‘should reasonably have known that EPA

was considering sulfide precipitation.’”’ 780 F.2d at

452. Although the court recognized that sulfide pre-

cipitation was not one of the six control and treat-

ment options identified in the Federal Register notice

of the proposed rule, the court noted that the pream-

ble to the proposed rules “specifically asked for com-

ments on alternative treatment technologies.” Jd.

Moreover, the court noted that EPA’s associated De-

velopment Document ‘“‘included both lime and settle

and sulfide precipitation in its discussion of effective

chemical precipitation methods.” Jd. The Fourth Cir-

cuit relied on the “logical outgrowth” rule and con-

cluded that “EPA did not violate the requirements

of the Administrative Procedure Act when, in an at-

tempt to respond to industry comments and com-

plaints, it added sulfide precipitation as a supplement

to the Best Available Technology on which its effluent

limitations were grounded.”’ Jd. at 453.

The Fourth Circuit’s opinion evidences no inquiry

into the administrative record, but defers entirely to

the technical information in the Agency’s brief. This

deference led the court to accept the Agency’s po-

sition that sulfide precipitation was simply the addi-

tion of a second step to the ‘“‘lime, settle and filter’

technology, that it could be transferred to Petitioners’

plants from experience gained outside the industry,

and that it is a “more effective treatment than the

conventional lime and settle process. Jd. These de-

terminations were based solely on EPA references in

the 55,000 page Record, none of which were con-

tained, or referred to, in the Federal Register notice.‘

‘The court also denied a Motion of Petitioners to Supplement

II. The Fourth Circuit Did Not Review The Agency’s

Actions

A. The Fourth Circuit Misinterpreted the Notice Require-

ments of the Administrative Procedure Act

Section 4 of the Administrative Procedure Act re-

quires that the notice in the Federal Register of a

proposed rulemaking contain “either the terms or

substance of the proposed rule or a description of the

subjects and issues involved.”’ 5 U.S.C. § 553(bX8). It

is well-settled that this notice requirement benefits

both the public and the agency involved, National

Tour Brokers Ass’n. v. United States, 591 F.2d 896,

902 (D.C. Cir. 1978), by encouraging public comment

and testing the rules, providing a fair opportunity for

all views, and creating a record for judicial review,

Small Refiner Lead Phase-Down Task Force v. EPA,

705 F.2d 506, 547 (D.C. Cir. 1983}; Marathon Oil Co.

v. EPA, 564 F.2d 1258, 1271 n.54 (9th Cir. 1977).

Due to the large volume of technical data involved,

it is especially important that adequate notice be given

in an EPA rulemaking. It is essential for EPA to

identify issues and related data with ‘‘reasonable spec-

ificity’’ in order to avoid an “elaborate treasure hunt,

the Administrative Record. In so doing, the court also denied

petitioners the opportunity to include in the Record long-term

data from a foreign plant (relied upon by EPA) showing that

sulfide precipitation would not achieve the prescribed limits; evi-

dence of a meeting between representatives of EPA and the

foreign plant (prior to the promulgation of the regulations) in

which EPA representatives were told that EPA samplings from

that plant were not representative of long-term performance;

and petitioners’ estimates of the costs of sulfide precipitation.

None of this information was considered by the Agency since

no comments mentioned sulfide precipitation and no supplemen-

tal comments had been allowed on sulfide precipitation after the

close of the comment period.

PLAS AR AT ARO I 8 EN a ALR ONC BERS

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in which interested parties, assisted by high-priced

guides (called ‘lawyers’), must search the record for

the buried treasure of a possibly relevant comment.”’

Small Refiner Lead Phase-Down Task Force v. EPA,

supra, 705 F.2d at 550. Although the Fourth Circuit

opinion pays lip service to the necessity of providing

notice “sufficiently descriptive to provide interested

parties with a fair opportunity to comment and to

participate in the rulemaking,” 780 F.2d at 452, citing

Chocolate Manufacturers Ass’n v. Block, 755 F.2d

1098, 1104 (4th Cir. 1985), it erroneously interpreted

what constitutes adequate notice.

The Court of Appeals based its suggestion that

petitioners below ‘‘should reasonably have known that

EPA was considering sulfide precipitation’ on two

factor: (1) “EPA specifically asked for comments on

alternative treatment technologies” in the preamble

to the proposed rules; and (2) EPA’s associated pro-

posed Development Document mentioned sulfide pre-

cipitation among the twenty-five treatment methods

identified as effective precipitation methods. 780 F.2d

at 452. The suggestion that the Agency’s request for

“alternative treatment technologies’ alone should

have placed the public on notice that sulfide precip-

itation was under consideration, in spite of the fact

that it was not mentioned among the six control and

treatment options listed in the Federal Register notice

of February 17, 1983, flies in the face of the APA’s

requirement that the notice be sufficient to give the

public a fair opportunity to comment and participate

in the rulemaking. The lack of notice is reflected in

the fact that in the comments received, no party even

suggested such a technology. The absence of any com-

ments on sulfide precipitation demonstrates the lack

of adequate notice,® particularly in light of the sub-

stantial comments received by EPA.

The court’s reliance upon the proposed Develop-

ment Document as a source of notice that sulfide

precipitation was under consideration is equally mis-

placed. The 2100 page proposed Development Docu-

ment was not included in the Federal Register notice.

The proposed Development Document included a list

of more than twenty-five existing water treatment

technologies. Sulfide precipitation was one of the

technologies discussed, but it was not identified as

one of the options under consideration as a proposed

model technology. The effect of the Fourth Circuit’s

decision places an enormous burden on commenters,

requiring them to address every detail of a massive,

technically complex Development Document despite

the fact that the Agency’s Federal Register notice

specified the technologies under consideration.

B. The Fourth Circuit Misinterpreted the “‘Logical Out-

growth” Rule

The Fourth Circuit also agreed with EPA that the

adoption of sulfide precipitation technology was a

“logical outgrowth”’ of the original proposal. 780 F.2d

at 452. Under this rule, substantial changes in ‘“‘the

original plan may be made as long as they are ‘in

character with the original scheme’ and ‘a logical out-

growth’ of the notice and comment already given.”

BASF Wyandotte Corp. v. Costle, 598 F.2d 637, 642

(1st Cir. 1979), cert. denied, 444 U.S. 1096 (1980),

5 See American Frozen Food Institute v. Train, 539 F.2d 107,

135 (D.C. Cir. 1976) which states ‘‘the importance of the issue

was belied by the obscurity of the footnote intended to give

notice, (and) by the lack of meaningful comment.”’

citing South Terminal Corp. v. EPA, 504 F.2d 646,

658, 659 (1st Cir. 1974). The final rule must be a

logical outgrowth of the Agency’s proposal, and not

a response to comments or complaints; a substantial

change in a proposed rule based on the comments is

not permitted without further notice and opportunity

to comment. Clearly, the Agency’s proposal must be

the source of the notice of a regulatory proposal,

comments by other parties do not satisfy that obli-

gation. National Black Media Coalition v. FCC, No.

85-4121, slip op. at 3688 (2d Cir. May 27, 1986); AF'L-

CIO v. Donovan, 757 F.2d 330, 340 (D.C. Cir. 1985);

Small Refiner Lead Phase-Down Task Force v. EPA,

supra, 705 F.2d at 549. See also Taylor Diving &

Salvage Co., Inc. v. Dept. of Labor, 599 F.2d 622 (5th

Cir. 1979); Wagner Electric Corp. v. Volpe, 466 F.2d

1013 (8d Cir. 1972).

Nevertheless, the court below permitted EPA to

rely on comments rejecting the six proposed tech-

nologies in introducing an entirely new technology

about which there had been no notice in the Federal

Register. Petitioners below could not have been

alerted, much less responded to, any changes in the

rule prompted by the comments, since neither the

proposal nor the comments even mentioned sulfide

precipitation. The Fourth Circuit adopted the EPA

position on sulfide precipitation which was developed

entirely without public input or scrutiny; moreover,

the court refused to consider industry data on sulfide

precipitation at the time of the petition for review.

See f.n. 4, supra.

The decision below extends the logical outgrowth

rule one step too far. In accepting EPA’s addition of

sulfide precipitation, the court concluded that the ad-

10

dition was ‘“‘an attempt to respond to industry com-

ments and complaints.”* The court also noted that

the ‘“‘comments led EPA to reexamine its selections

of model technologies and data basis’’ and observed

~ such changes can be a “ ‘logical outgrowth’ of

the original proposal and the notice and comments

upon it.” 780 F.2d at 453. However, none of the

comments upon which EPA relied in switching to sul-

fide precipitation endorsed or even mentioned this

alternative technology. Rather, the comments de-

scribed the failings of the six technologies listed in

the Federal Register notice. This in not an appropriate

basis for permitting EPA to introduce an entirely

different technology upon which no comment was re-

ceived.

The court compounded its error by failing to re-

mand the rulemaking to EPA to provide an oppor-

tunity to comment on sulfide precipitation and its

refusing to permit petitioners below to supplement

the administrative record. Absent any public comment

on sulfide precipitation the court was not in a position

to accept EPA’s contentions that ‘sulfide precipitation

technology was simply an incidental supplement to

“lime, settle and filter; that sulfide precipitation

could achieve the prescribed effluent limits; and that

use of the technology in other industries could be

validly transferred to the U.S. nonferrous metals in-

6 These comments and complaints demonstrated that the six

proposed technologies were not appropriate for the specific limits

in the regulations. Rather than acknowledge the comments, the

Agency rejected all petitioners’ data and invoked a new tech-

nology to justify its preconceived limits.

11

dustry.’ In short, the court did not have a sufficient

administrative record upon which to make a reasoned

and informed judgment.

The decision below imposes enormous burdens on

those who must comment on proposed regulations. It

permits EPA or any administrative agency to fulfill

the notice requirements of the APA merely by in-

cluding material in a voluminous Development Doc-

ument or anywhere else in the record without notice

in the Federal Register. This permits (in the words

of the Fourth Circuit) ‘‘ambushing’’ those who have

not addressed all the items described therein. For

instance, in the effluent guidelines rulemaking at issue

here, commenters would have been compelled to sub-

mit data on 25 different pollution control technologies

after obtaining the proposed Development Document,

which was not contained in the Federal Register. The

APA does not countenance such administrative slight

of hand, which focused attention on one set of tech-

nologies only to have the agency adopt an entirely

different technology. Such a procedure would frus-

trate and preclude meaningful comment in the rule-

making process. It would also increase the costs

dramatically for those who wish to participate in in-

formal rulemaking proceedings since the entire record

becomes subject to comment regardless of what is

specified in the Federal Register notice.

7See also 780 F.2d at 452-53 where the court makes further

specific findings with regard to technical and process matters

presented in the EPA brief without any support from material

in the administrative record.

12

III. The Decision Below Creates A Conflict Among The

Circuits

The Fourth Circuit’s interpretation of ‘‘logical out-

growth,” in the decision below also conflicts with

those of other Courts of Appeal. As discussed supra,

the Fourth Circuit held that a substantial change in

a proposed rule induced by comments or criticisms

meets the ‘“‘logical outgrowth’’ test.

Decisions in the District of Columbia and Second

Circuits and even earlier decisions within the Fourth

Circuit have reached contrary conclusions. A recent

decision by the D.C. Circuit stated that as ‘‘a general

rule, [an agency] must itself provide notice of a reg-

ulatory proposal. Having vowed to do so, it cannot

bootstrap notice from a comment. The APA does not

require comments to be entered on a public docket.

This notice necessarily must come—if at all—from the

agency.”” AFL-CIO v. Donovan, supra, 757 F.2d at

340, citing Small Refiner Lead Phase-Down Task

Force v. EPA, supra 705 F.2d at 549 (emphasis in

original). The decision also conflicts with a recent de-

cision by the Second Circuit. In National Black Media

Coalition v. FCC, No. 85-4121 (2d Cir. May 27, 1986)

the court remanded the case to the Federal Com-

munications Commission for failing to comply with

section 4 of the APA. The FCC had announced in a

notice published in the Federal Register that station

applications from minority groups would receive pref-

erential treatment. In its final report, and without

prior public notice, the FCC announced that there

would be no minority preference policy. In remanding

the case, the court remarked, ‘“[t]he FCC now at-

tempts to defend its notice by contending that inter-

ested parties were invited to submit other proposals.”

13

Slip Op. at 3687. The Second Circuit rejected that

defense and remarked, “‘if this were enough ... an

agency could simply propose a rule and state that it

might change that rule without alerting any of the

affected parties to the scope of the contemplated

change, or its potential impact and rationale, or any

other alternatives under consideration.” Jd.

In this case, the Fourth Circuit approved EPA’s

promulgation of a substantially new regulation which

was not even based on a new comment, but rather

on the Agency’s internal determination that the six

proposed technologies were not appropriate. It also

introduced the element of the Agency’s good faith,

780 F.2d at 452, which is irrelevant to the issue of

notice and is not a legal substitute for it.

The decision below also conflicts with another

Fourth Circuit decision, Chocolate Manufacturer Ass’n

v. Block. 755 F.2d 1098 (4th Cir. 1985), cited in the

decision below. In Chocolate Manufacturers Ass’n, the

agency proposed regulations concerning the sugar

content of federally funded food packages. Flavored

milk and its sugar content was not placed in issue

by the proposed rule. However, in response to public

comment, flavored milk was removed from the pro-

gram due to its high sugar content.

In that case, the Fourth Circuit recognized that an

agency may promulgate a final rule different from

the proposed rule, but when the final rule substan-

tially departs from the proposed rule, the original

notice is inadequate. The court noted that at the time

of proposal the public had not had any indication that

flavored milk was at issue, and the very detailed and

specific preamble to the proposed rule did not discuss

flavored milk. In striking down the final rule, the

14

court specifically addressed the ‘‘logical outgrowth”’

rule. 755 F.2d at 1105-1106. The court said it did not

feel the petitioner was “fairly treated or that the

administrative rulemaking process was well served by

the drastic alteration of the rule without an oppor-

tunity for CMA to be heard.”’ Jd. at 1106. In the case

below, the Fourth Circuit did not distinguish the Choc-

olate Manufacturers Ass’n decision, and cited the case

only for the general proposition that an agency may

promulgate a final rule that differs in some particu-

lars from its proposals. The court ignored the very

detailed and specific Federal Register notice and

blindly upheld the Agency regulations.

CONCLUSION

This is a case-of fundamental importance for agency

proceedings, particularly where technical material is

involved. In denying the petition for review, the

Fourth Circuit failed to meaningfully review the

Agency’s action. In doing so it also permitted the

Agency to violate the notice requirement of the APA

and misinterpreted the logical outgrowth rule. The

Fourth Circuit’s decision creates a conflict among the

circuits. For these reasons, this Court should grant

the petition for writ of certiorari.

15

Respectfully submitted,

ALAN S. WARD

Counsel of Record

JEFFREY S. HOLIK

WILLIAM R. BAKER, III

BAKER & HOSTETLER

1050 Connecticut Ave., N.W.

Suite 1100

Washington, D.C. 20036

(202) 861-1500

Attorneys for Amicus Curiae

Of Counsel:

GERALD J. KITCHEN

ALUMAX, INC.

400 El Camino Real

San Mateo, California 94402

(415) 348-3400