Amicus Curiae Brief — American Mining Congress v. Thomas

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ps Supreme Court, U.S,

5 PAeLED

JUN 27 ree

No. 85-1741 JOSEPH F. SPANIOL, JR.

—=

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

AMERICAN MINING CONGRESS,

AMAX INC.,

ASARCO INCORPORATED,

ST. JOE MINERALS CORPORATION,

Petitioners,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

BRIEF OF THE

NATIONAL ASSOCIATION OF MANUFACTURERS

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

QUENTIN RIEGEL

Assistant General Counsel

NATIONAL ASSOCIATION OF

MANUFACTURERS

1331 Pennsylvania Ave., N.W.

Suite 1500—North Lobby

Washington, D.C. 20004

(202) 637-3058

Attorney for Amicus Curiae

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

SBS Se

TABLE OF CONTENTS

Page

py Rt ie 2 oy), een aE ii

INTEREST OF THE AMICUS CURIAE ...................... 1

ep GE Sf lt iy | ht! | | Reena 3

SUMMARY OF THE ARGUMENT ............00...02........... 4

I seit esintn cechccernchiaaiccniasinsinhbiicinaiisanttccmmneetiniiane 5

I. FIRST AMENDMENT PRINCIPLES, INCOR-

PORATED BY CONGRESS INTO NOTICE

AND COMMENT RULEMAKING, PROTECT

THE PARTICIPATION OF THE PETITION-

ERS AND IMPROVE THE ADMINISTRA-

I E idiaacicschibaniakadaan deans 5

II. THIS COURT IS THE ONLY APPROPRIATE

FORUM FOR RESOLVING HOW THE

STATUTORY STANDARDS SHOULD BE

INIT. siacccathatocoeeccinlagsa ceginsansms nuboidocommeaninntanies 10

ALERT CS RI DOPE SOT ON TEE 14

TABLE OF AUTHORITIES

CASES: Page

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

DI a ceresnintiscidessnssineenseencnmenaiian 12, 18

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

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

6) ) RRMeneemmenmennmnnnneirrniensumcnir SSS ENS Heise oes 8

Chevron U.S.A. Inc. v. Natural Resources Defense

Council, 467 U.S. 887 (1984) ........-..-.2.-..2+0...-.---. 8

Chocolate Mfrs. Ass’n v. Block, 755 F.2d 1098 (4th

+ | Sern Re Nae ALAIN ERT, 7-8, 10-11

Eastern Railroad President’s Conference v. Noerr

Motor Freight, Inc., 365 U.S. 127 (1961) ............. 5

Eli Lilly & Co. v. Costle, 444 U.S. 1096 (1980) ........ 12

Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir.) (en

banc), cert. denied, 426 U.S. 941 (1976) .............. 13

Kennecott v. EPA, 780 F.2d 445 (4th Cir. 1985)... 4,12

Landmark Communications, Inc. v. Virginia, 435

Ue, GRD CRITI) esiccnnticintesscincincenenctiidicmaaieanns 6

Motor Vehicle Mfrs. Ass’n v. State Farm Mutual

Automobile Ins. Co., 463 U.S. 29 (1983) -........... 7

National Black Media Coalition v. FCC, Docket No.

85-4121 (slip op., 2d Cir., May 27, 1986).............. 10

Secondary Lead Smelters Ass’n., Inc. v. Ruckels-

et E , | eeeenneennmenn interns: NTR 9

Small Refiner Lead Phase-Down Task Force v.

EPA, 705 F.2d 506 (D.C. Cir. 1983) .................... 10

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

aa, TIPO nacscniscscccininincsscanbach peace aoe 12

Thomas v. Collins, 323 U.S. 516 (1946) _......-.......... 5

United Mine Workers v. Pennington, 381 U.S. 657

CRD nrcececicccnissistsnccesicssh-staiciceiincainnipebiaiatiei annealed 5

United Mine Workers, District 12 v. Illinois State

Ber Ans'n, GB UB. BET CROtE iceneenccassaen 5

United States v. Nova Scotia Food Prods. Corp.,

3s § 8 ft Sj eee 13

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

+ Sy |.» | annmmme eee me Tn A He Be ASIAN Mi es 11

ili

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES: Page

Administrative Procedure Act, 5 U.S.C. § 553(b)

TRIE TS 4,7

Clean Water Act of 1977, 33 U.S.C. §§ 1251-1376

nc AD ER eee a re 3

Occupational Safety and Health Act of 1970, 29

eee wee CUD nn esceecene 9

Resource Conservation and Recovery Act of 1976,

42 U.S.C. § 6901 et seg. (1988) ...........00 10

49 Fed. Reg. 8760 (Mar. 8, 1984) _......0.000.00.0.... 3

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-1741

AMERICAN MINING CONGRESS,

AMAX INC.,

ASARCO INCORPORATED,

ST. JOE MINERALS CORPORATION,

Ke Petitioners,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

BRIEF OF THE

NATIONAL ASSOCIATION OF MANUFACTURERS

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

The National Association of Manufacturers (“NAM’’)

respectfully submits this brief amicus curiae pursuant to

the written consents of the parties.’

INTEREST OF THE AMICUS CURIAE

The NAM is a non-profit voluntary business associa-

tion incorporated under the laws of the state of New

York. The NAM represents approximately 13,000 com-

1 These consents have been filed with the Clerk of the Court.

panies, large and small, located in every state of the

Union. Further, the NAM is affiliated with an additional

158,000 businesses through the Associations Council and

the National Industrial Council. The membership of the

NAM represents an estimated 80 percent of all goods

manufactured in the United States and our members em-

ploy approximately 85 percent of all workers in the man-

ufacturing sector.

The NAM and its members are vitally affected by the

federal regulatory process of virtually every government

agency and department. For this reason, the NAM and

its members are active participants in this process and

frequently file comments or testify on proposed regula-

tions. The NAM and its members view their participa-

tion in this process as an obligation of responsible citizen-

ship and a right that is protected by the First Amend-

ment to the Constitution. The meaningful exercise of this

right and obligation requires that we be fully informed

of the scope of proposed regulations and the direction thet

federal regu’stors intend to proceed.

We believe that the decision of the United States Court

of Appeals for the Fourth Circuit below has the effect

of stifling fair and relevant discussion of regulatory pro-

posals that are required by the Administrative Procedure

Act to be open for public comment. If left undisturbed,

this decision could have the effect of eviscerating not only

this statutory right to notice and an opportunity to com-

ment, but also the First Amendment right to petition the

Government for a redress of grievances. Such a result

discourages the very input that is essential to reasoned

and balanced rulemaking and undermines the foundations

of participatory democracy envisioned by the Framers of

this Constitution. For these reasons, as well as those

explained in further detail in this brief, the NAM sub-

mits the following arguments to this Court in support

of the Petitioners.

SUMMARY OF THE CASE

Pursuant to the Clean Water Act of 1977, 33 U.S.C.

$§ 1251-1376 (1982) the United States Environmental

Protection Agency (EPA) proposed twelve sets of na-

tionally applicable effluent guideline regulations for non-

ferrous metals manufacturing, including the lead, zinc

and copper industries. These proposals, spanning 95

pages in the Federal Register, and supplemented by a

3-volume, 2100-page proposed Development Document,

sought comments from interested parties about six pri-

mary “control and treatment options” that were selected

for final consideration for the treatment of waste water

from nonferrous metals manufacturing plants. EPA’s

proposed Development Document included more than 25

alternative waste water control options, including a proc-

ess of sulfide precipitation that was subsequently adopted

as a primary method of compliance with the Clean Water

Act’s requirements. From the 25 technologies, EPA

selected six for final consideration and specified them in

the Federal Register proposal. Although the EPA re-

quested interested parties to comment on alternative tech-

nologies, the six technologies were the basis of the rule-

making proceeding, and after the comment period ex-

pired, EPA announced that a seventh technique (sulfide

precipitation) was adopted by the agency and included in

final regulations promulgated on March 8, 1984. 49 Fed.

Reg. 8760.

Petitioners brought suit? to set aside certain of the

EPA’s effluent limitation guidelines and to remand the

rulemaking proceeding for further consideration of the

sulfide precipitation option. That court ruled that EPA’s

mention of the sulfide precipitation technology in the pro-

posed Development Document, along with its request that

interested parties give comments on similar “alternative

? Petitioners filed suit in the Eight Circuit, and the case was

transferred to the Fourth Circuit and consolidated with petitions

from other industry groups.

treatment technologies” did not violate the provision of

the Administrative Procedure Act (“APA”) that re-

quires notice to the public of “either the terms or sub-

stance of the proposed rule or a description of the sub-

jects and issues involved.” 5 U.S.C. § 553(b) (3) (1966).

It held that EPA could make “ ‘substantial changes’ in

its original proposed rule if the changes [were] a ‘logical

outgrowth’ of the original proposal and the notice and

comments upon it.” Kennecott v. EPA, 780 F.2d 445,

453 (4th Cir. 1985). This ruling is now on appeal.

SUMMARY OF THE ARGUMENT

The NAM believes this case raises an important issue

concerning the point at which the rulemaking proposals

of regulatory agencies change sufficiently enough to war-

rant a restatement by the agency of their scope, focus

and priority. Our democratic system of government de-

mands, particularly in the Age of High Technology, that

each branch of government be fully aware of all recent

developments and other aspects and ramifications of pend-

ing action. Regulatory agencies, charged by law with full

and fair consideration of all relevant issues in proposed

rulemakings and enforcement activities, are on the front

lines of this process, and their decisions have wide-rang-

ing impact with minimal judicial review.

This Court should take this opportunity to adopt a rule

of judicial review to provide guidance to the lower courts

concerning the point at which a regulatory initiative

must be submitted for further comment. Since the Ad-

ministrative Procedure Act does not provide explicit pro-

cedural guidelines for such a supplemental comment

period, we would suggest that such a period could be ac-

commodated in a relatively short time frame, particu-

larly since interested parties will already be familiar

with the background and supplementary documentation

for the rulemaking. This would satisfy both the require-

ments of the APA, the First Amendment, and the needs

ey oe

of the administrative agency for a prompt and effective

resolution of regulatory issues. Indeed, failure to repro-

pose a rule that is significantly altered during notice and

comment proceedings is arbitrary and capricious, and a

violation of the APA.

This Court has never before ruled upon the need for

regulatory agencies to give reasonable notice of signifi-

cant substantive regulatory changes arising from com-

ments in a rulemaking proceeding, and a decision is

clearly called for.

ARGUMENT

I. FIRST AMENDMENT PRINCIPLES, INCORPO-

RATED BY CONGRESS INTO NOTICE AND COM-

MENT RULEMAKING, PROTECT THE PARTICI-

PATION OF THE PETITIONERS AND IMPROVE

THE ADMINISTRATION OF LAW.

Because the right to petition the government for re-

dress of grievances is among the most precious of liber-

ties enshrined in the Bill of Rights, any attempt to limit

or impair the exercise of that right must be closely ex-

amined and justified by a clear public interest. Thomas

v. Collins, 323 U.S. 516, 530 (1946) ; United Mine Work-

ers, District 12 v. Illinois State Bar Association, 389 U.S.

217, 222 (1967). This Court has developed judicial doc-

trines to bolster the free flow of opinion to political bod-

ies in order to ensure intelligent decisionmaking. For ex-

ample, the Court recognizes a constitutionally grounded

exemption from liability under the antitrust laws for

companies or individuals that work together to effect leg-

islative or administrative change, even if that change

has anticompetitive significance. See Eastern Railroad

President’s Conference v. Noerr Motor Freight, Inc., 365

U.S. 127 (1961); United Mine Workers v. Pennington,

381 U.S. 657 (1965). Likewise, the Court has struck

down restrictions on the freedom of speech and of the

press to ensure that the public (including officials and

representatives in the government) are assured a free

flow of information on which to base judgments or opin-

ions in our society. Landmark Communications, Inc. v.

Virginia, 485 U.S. 829 (1978).

In the rulemaking context, the freedom of speech is no

less important a right for the speaker as it is a neces-

sity and statutory mandate for the regulatory agency.

But speech without focus, due to the failure of a regu-

latory agency to give adequate notice, loses its substance.

It suffers from lack of direction, and prevents the speaker

from fully and freely expressing his position. Thus, an

overly broad or misdirected notice of proposed rulemak-

ing saps the essence of free speech.

The NAM recognizes that statutory regulation of cer-

tain aspects of private enterprise, administered by the

established executive departments of the government, is

a legitimate function of the federal government and is

in the public interest. However, the delegation of quasi-

legislative authority to federal agencies lacks political ac-

countability when exercised exclusively by unelected regu-

latory officials. We therefore believe that public partici-

pation in the agency decisionmaking process is an essen-

tial mechanism that ensures political accountability.

The First Amendment requires no less. In order for

the right to petition the government for redress of griev-

ances to be effective, a party must be aware of what

governmental action will adversely affect him at a time

when petitioning the government will not be a useless

gesture. When a complicated and time-consuming rule-

making proceeding is completed, any amendments to sat-

isfy the grievances of adversely affected parties may, as

a practical matter, take months or years to fully and

properly address, given the workload, priorities, and

shifting responsibilities of the agencies charged with the

promulgation and enforcement of federal law. The right

to petition for redress of grievances is no right at all

if the governmental agency that hears the grievance has

effectively and practically precluded resolution of the

grievance at the appropriate time. Changing a final rule

under notice and comment procedures requires the same

panoply of procedural protections that applied in the pro-

mulgation of the rule in the first instance. See Motor

Vehicle Manufacturers Association v. State Farm Mutual

Automobile Insurance Co., 463 U.S. 29, 41-42 (1983).

Thus, petitioners’ request for reconsideration of the final

rule promulgated by EPA is decidedly less of right than

if the request were accepted by the agency before promul-

gation of the final rule. With consideration of all argu-

ments before final adoption of a rule, the EPA could

avoid having to justify both its position on the final rule

and its position on any amendments to the final rule

in separate documents by a reasoned analysis supported

by substantial evidence on the record considered as a

whole. It would much more easily and willingly analyze

and decide upon suggested changes and other comments,

and would thus accord to the First Amendment right of

petition its proper stature in the context of an adminis-

trative rulemaking.

For regulation to be fair, each branch of government

must be fully aware of all recent developments and other

aspects and ramifications of pending actions. Due process

and the constraints of the APA require an agency to give

notice of either the terms or substance of the proposed

rule or a description of the subjects ard issues involved.

5 U.S.C. § 553(b) (3) (1966). This notice must be “suf-

ficiently descriptive to provide interested parties with a

fair opportunity to comment and to participate in the

rulemaking.” Chocolate Manufacturers Association v.

Block, 755 F.2d 1098, 1104 (4th Cir. 1985). The Choco-

late Manufacturers case and others clearly state and

apply the rule that substantial changes from the proposed

rule to the final draft require some sort of opportunity

for affected parties to be heard. 755 F.2d at 1105. It

is imperative that this Court now agree to decide whether

the Chocolate Manufacturers case properly states the

guiding principle, and ultimately whether the adoption

of the sulfide precipitation technology in addition to the

six other technologies that were the primary focus of the

rulemaking constitutes a sufficient change in the scope

or focus of the rulemaking to warrant an appropriate and

limited additional notice and period of time in which

interested parties may respond. This additional comment

period, it must be noted, applies with equal force to all

parties interested in the outcome, and EPA may well

discover that there is additional information of which

it was not aware that further supports its ultimate regu-

latory decision.

In any case, because technology and our understanding

of chemical, biological or other natural forces is becom-

ing so complex and subject to rapid change, a federal

agency must ensure that it properly addresses the full

implications of its proposed action. It must give the

benefit of the doubt whether a change ‘is significant to

the public, since the burden of additional notice and com-

ment is minimal compared to that imposed on affected

parties after final promulgation of the rule.

Regulatory agencies are on the front lines in the de-

velopment, interpretation and enforcement of a tremen-

dous quantity of federal law. This Court has recently

reaffirmed the guiding principle in administrative regu-

lation cases that reviewing courts should normally defer

to the expertise of the agency in technical and complex

areas. Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 887, 844-45 (1984). For this rea-

son, procedural determinations by agencies regarding

whether to resubmit a significant change in a proposed

rule to the public for additional comments are of even

more importance. Indeed, judicial review of such deci-

sions is strict, and not limited by the rule of deference

accorded determinations by regulatory agencies. BASF

Wyandotte Corp. v. Costle, 598 F.2d 637, 641 (1st Cir.

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

review of procedural determinations by such agencies is

essential if the courts will continue to defer to regulatory

expertise on the technical issues.* Without fairly strict

limits on the ability of agencies to make subs. ‘ial

changes in rules without notice to the public, agencies in

effect will become courts of last resort, eliminating the

judicial branch from any substantive role in the review

of regulatory judgments.

A Supreme Court ruling in this case is important to

hundreds and hundreds of manufacturers, environmental

groups, and individuals affected by EPA regulations. Re

view by the Supreme Court will also affect the decision-

making process of other agencies. For example, proposed

regulations under the Occupational Safety and Health Act

of 1970, 29 U.S.C. §§ 651-78 (1985) may involve complex

and sophisticated analyses of environmental and epidemi-

* There is a close correlation between the adequacy of notice by a

regulatory agency and the amount of deference a reviewing court

should exercise. The more leeway an agency has in deciding sub-

stantive issues, the more courts should guarantee that procedural

requirements have been scrupulously followed. Conversely, if courts

were expected to accord de novo review of substantive agency deter-

minations (which, of course, is not the law) strict adherence to

procedural requirements might not be as important from a constitu-

tional perspective, since affected parties would have a full and fair

opportunity to air their grievances on appeal. Where there is some

doubt about the adequacy of notice, reviewing courts should pay

particularly close attention to ‘he substantive judgments of the

agency and the opposing argumeiits of affected parties. In this case,

a number of substantive and technical issues have been raised by

petitioners in Secondary Lead Smelters Ass’n, Inc. v. Ruckelshaus

(No. 85-1748), on appeal from the same Fourth Circuit decision.

The adequacy of notice was raised in that petition as well, although

its primary focus is on the substantive problems at the administra-

tive level and procedural problems at the appellate level. Because

of the question of adequate notice, this Court should approach the

petitioners’ substantive arguments in Secondary Lead Smelters

Ass’n with precision and in detail to protect the rights of the

parties and the integrity of the administrative process.

ological data relating to employee exposures to potentially

hazardous materials in the workplace. Other environmen-

tal statutes also require highly sophisticated and complex

rulemaking, such as those under the Resource Conserva-

tion and Recovery Act of 1976, 42 U.S.C. § 6901 et seq.

(1983), in which the EPA must analyze biological and

physical evidence in order to classify hazardous sub-

stances according to such factors as toxicity and carcino-

genicity. It is just as an important in these areas for

the Court to provide guidance to the public regarding

the extent to which modifications or alterations of original

rulemaking proposals require an additional opportunity

for public comment before final implementation.

Il. THIS COURT IS THE ONLY APPROPRIATE

FORUM FOR RESOLVING HOW THE STATUTORY

STANDARDS SHOULD BE APPLIED.

Determining the adequacy of notice is a judicial, not an

administrative, function. National Black Media Coalition

v. FCC, Docket No. 85-4121, 3675, 3684 (slip op., 2d Cir.,

May 27, 1986). Adequate notice is a critical starting

point affecting the integrity of an administrative proceed-

ing, and is essential to improving the quality and fairness

of the rulemaking and the enhancement of judicial re-

view. Small Refiner Lead Phase-Down Task Force v.

EPA, 705 F.2d 506, 547 (D.C. Cir. 1983).

Courts have struggled to decide when a rulemaking

proceeding has evolved sufficiently to require an amended

notice and opportunity to comment on the issues to be

resolved. The Chocolate Manufacturers case involved a

final rule that eliminated flavored milk from a federally

funded food program based on comments from the public,

without giving any indication to the public that that

course of action was contemplated. Chocolate Manufac-

turers Association v. Block, 755 F.2d 1098 (4th Cir.

1985). In that case, the Fourth Circuit criticized the

inadequacy of notice and ordered the administrative

agency to reopen the comment period to afford a fair

opportunity for interested parties to comment. 755 F.2d

at 1107. It decided that the final rule “dramatically

altered the proposed rule” and constituted “a complete

reversal.” As in the instant case, the changes were based

on comments received.

Such a change in a rule could have been expected to

generate a considerable amount of comment, both favor-

able and unfavorable, from affected parties had they real-

ized that the agency was going to take that action. In

another case, the Third Circuit ruled that the absence of

comments from groups which could be expected to op-

pose or be affected by a significant change from a pro-

posed rule to a final rule belies the contention that notice

of the impending change was adequate. Wagner Elec-

tric Corp. v. Volpe, 466 F.2d 1013, 1019-20 (3d Cir.

1972). Thus, a reviewing court should look not only at

the actual references to the proposed change in the offi-

cial notice in the Federal Register, but also at the breadth

of comments from affected parties, to determine whether

notice was full and fair. This is not to say that inter-

ested parties who were fully apprised of the impending

change but failed to file comments should have a “second

bite at the apple.” However, where there is doubt as to

the adequacy of notice followed by complaints from in-

terested parties, and a dearth of comments from inter-

ested parties on the relevant point in the administrative

record, a reasonable suggestion of inadequate notice is

indicated. This Court must state and explain these pro-

cedural points in order to advance the progress and

clarity of rulemaking to the benefit of both the agencies

and the regulated communities throughout the country.

Several courts have adopted a similar but not identical

test known as the “logical outgrowth” test. It provides

that a reviewing court will allow an agency to make sub-

stantial changes in its original rulemaking proposal as

long as they are “in character with the original scheme”

and “a logical outgrowth” of the notice and comments

already given. AFL-CIO v. Donovan, 757 F.2d 330, 338

(D.C. Cir. 1985); South Terminal Corp. v. EPA, 504

F.2d 646, 658, 659 (1st Cir. 1974). The opinion below

was based on the notice issue in the logical outgrowth

test, but it ignored the crucial factors. 780 F.2d 445,

453 (4th Cir. 1985). It was based on the court’s deter-

mination, from EPA’s references to materials in the

50,000-page administrative record and not mentioned in

the Federal Register, that petitioners should have ex-

pected the change. Such a finding puts an impossible

burden on parties who file comments based on the Fed-

eral Register notices of federal agencies.

Even if the Fourth Circuit had properly applied the

logical outgrowth test, it is by no means clear that the

test produces the same results as a test which considers

the substantiality of a rule’s change, the complexity of

the rule, and the extent of attention by interested par-

ties to the proposed modification. We underscore the

opinion of Justices Rehnquist and Powell that this Court

should grant certiorari to examine the question. Eli Lilly

& Co. v. Costle, 444 U.S. 1096, 1097 (1980) (Rehnquist,

J., joined by Powell, J., dissenting from order denying

certiorari). The question is a recurring one and one

“upon which there will never be a ‘square conflict’ among

the various Courts of Appeals, since the differences be-

tween the originally promulgated regulations and the

finally promulgated regulations will necessarily be ones

of degree.” 444 U.S. at 1097-98 (Rehnquist, J., dissent-

ing from order denying certiorari).

A rule subjecting agencies to a supplemental notice

and comment requirement is also necessary to prevent

“regulation by ambush,” where an agency simply pro-

poses a rule and states in the Federal Register that it

might change the rule without alerting any of the af-

fected parties to the scope of the contemplated change,

or its potential impact or rationale, or any other alterna-

eed

tives under consideration. An agency may not change a

rule on the basis of comments alone if the interested

parties were not apprised of how the proposed rule would

change. AFL-CIO v. Donovan, 757 F.2d 330, 340 (D.C.

Cir. 1985). Rather, the proper method is to repropose

regulations that are significantly altered in response to

comments. Ethyl Corp. v. EPA, 541 F.2d 1, 48-49 &

n.100 (D.C. Cir.) (en bane), cert. denied, 426 U.S. 941

(1976). The agency’s failure to repropose under such cir-

cumstances is arbitrary and capricious, and a violation

of the APA. United States v. Nova Scotia Food Prods.

Corp., 568 F.2d 240, 251 (2d Cir. 1977).

It is common practice in regulatory proceedings for an

agency to narrow the focus of its inquiry to a select

number of realistic options for the final regulation. It

would be an insurmountable burden on all interested

parties, whether for or against a particular regulation,

to have to deal with a potpourri of technologies or op-

tions that are available but that are not referred to in

the Federal Register as those selected by the agency for

final consideration. It would be a monumental waste of

time and resources for all interested parties to provide

full documentation to an agency on all possible options

that might be considered. It is unrealistic and unfair

to assume that interested parties should have a crystal

ball to forecast possible agency decisions. Rather, it is

appropriate to focus on those specific options for which

the agency has specifically requested comments. In the

kind of wide-ranging rulemaking under consideration in

this case, it is essential for interested parties to focus on

the primary issues, although they might also include men-

tion of additional issues they feel deserve further con-

sideration by the agency.

In addition, requiring an agency to resubmit rules for

public comment furthers the goals of the administrative

process and is not burdensome on the agency. Additional

time for interested parties to comment would be mini-

mal, since they would already be on notice of the broad

parameters of the rule when it was first proposed. Any

additional comments made would be easier for the agency

to digest, since they would be focused on the new change

rather than on the other provisions already covered in

the first notice and comment proceeding. Thus, an ad-

ditional notice and comment period is a reasonable solu-

tion to a situation that threatens the fairness of the

regulatory process.

It is reasonable to conclude that the sulfide precipita-

tion technology, selected by the EPA after the comments,

was not a logical and closely-related outgrowth of the

initial EPA proposal. It was a substantial change affect-

ing numerous parties who would have commented if pos-

sible, and further notice and comment is necessary and

reasonable to ensure that these parties focus their at-

tention and comments on this technology to provide rele-

vant metals-industry data for the EPA to consider. The

NAM urges this Court to set forth the legal underpin-

nings on which such a decision can be made.

CONCLUSION

The freedoms enshrined in the Bill of Rights and incor-

porated into the Administrative Procedure Act are en-

dangered when regulatory agencies can adopt final reg-

ulations that are significantly different from those origi-

nally announced under the APA to interested parties.

Both the First Amendment and the APA were intended

to survive and adapt to technological progress and the

ever-increasing informational needs of the public and of

governmental authorities. Unless redirected by this Court,

lower courts may increasingly defer to the expertise of

regulatory agencies on substantive issues even though

the agencies have not adequately followed procedures that

assure a full and fair discussion of all significant sub-

stantive issues.

We therefore respectfully request that this Court grant

the petition for a writ of certiorari to review the decision

of the United States Court of Appeals for the Fourth

Circuit.

Respectfully submitted,