Amicus Curiae Brief — American Mining Congress v. Thomas

_s, Supreme Court, US. .

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SUR BZ C6

No. 85-1748 JOSEPH F. SPANIOL, JR.

ELERK

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1985

THE SECONDARY LEAD SMELTERS ASSCCIATION, INC.,

and

GuLF Coast LEAD ComPAny, INC.

Petitioners,

Vi

WILLIAM D. RUCKELSHAUS, et al.,

Respondents.

BRIEF OF AMICUS CURIAE

LEATHER INDUSTRIES OF AMERICA

IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS

FOR THE FOURTH CIRCUIT

STEPHEN E.. ROADY

Counsel of Record

ANDREWS & KURTH

1730 Pennsylvania Ave., N.W.

Washington, DC 20006

(202) 662-2700

Counsel for Amicus Curiae

Leather Industries of America

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

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1985

NO. 85-1748

THE SECONDARY LEAD SMELTERS ASSOCIATION, INC.,

and

GuLF Coast LEAD COMPANY, INC.

Petitioners,

Vv.

WILLIAM D. RUCKELSHAUS, et al.,

Respondents.

I. INTRODUCTION AND STATEMENT OF

INTEREST OF AMICUS CURIAE LEATHER

INDUSTRIES OF AMERICA

Amicus Curiae Leather Industries of America (‘‘LIA’’)

respectfully submits this brief in support of the Petition

for Writ of Certiorari to the United States Court of

Appeals for the Fourth Circuit that the Secondary Lead

Smelters Association, Inc. and Gulf Coast Lead Company,

Inc. filed in this proceeding on April 24, 1986. The

petitioned writ of certiorari should be granted for the fol-

lowing reasons.

LIA is a trade association whose members are tanners

of leather and manufacturers of leather goods. At present,

LIA’s members produce approximately ninety percent of

the leather in the United States.

Because LIA’s members are subject to effluent limita-

tions guidelines promulgated under the same statutory au-

thority as the ones challenged in the proceeding below,

LIA has a substantial interest in the judicial review and

notice and comment issues this case raises. Section 301

of the Clean Water Act, 33 U.S.C. § 1311, requires the

U.S. Environmental Protection Agency (“EPA’’) at least

every five years, to review the effluent limitations guide-

lines applicable to the leather tanning and finishing in-

dustry and to revise them when necessary. Because section

301 subjects the industry to periodic rulemaking by EPA,

the industry has an important interest in ensuring both

that EPA conducts its rulemaking proceedings properly,

and that federal appellate courts responsibly review these

proceedings pursuant to the judicial review provisions of

the Clean Water Act, 33 U.S.C. § 1369, and the Admin-

istrative Procedure Act (‘APA’), 5 U.S.C. § 706.

II. STATEMENT OF THE CASE

LIA incorporates herein by reference the Statement of

the Case set forth in the Petition for Writ of Certiorari

to the United States Court of Appeals for the Fourth

Circuit.

III. SUMMARY OF ARGUMENT

In the proceeding below, the United States Court of

Appeals for the Fourth Circuit did not satisfy its judicial

review’ responsibilities under the Clean Water Act and the

Administrative Procedure Act to meaningfully review the

rulemaking proceedings of the EPA. The court failed to

examine the Agency’s record of rulemaking with any de-

gree of scrutiny, and instead approved the Agency’s de-

cision on the ground that it was not arbitrary or capricious.

The lack of meaningful review threatens the integrity of

future EPA rulemakings.

In the proceeding below, the parties objected to what

amounts to a breakdown in compliance with the notice and

comment requirements of the APA. In selecting the em-

pirical data upon which it based certain effluent limitation

guidelines, EPA ignored relevant data submitted by the

industry and relied upon data about which the industry

was denied an opportunity to comment. The court below

failed entirely to address this glaring procedural defect.

The failure of the Fourth Circuit Court of Appeals to

correct the patent errors of the EPA in the proceeding

below would create an intolerable precedent. The com-

plexity of EPA rulemaking proceedings will increase,

rather than diminish, in the future as the Agency considers

expanding volumes of technical data in promulgating ef-

fluent limitation guidelines. This Court should not allow

the federal appellate courts to approve EPA rulemaking

proceedings that do not comply with notice and comment

requirements, merely because the underlying data at issue

is voluminous and results in a difficult review process.

IV. ARGUMENT

1. The Writ Should Issue to Correct Serious Failures

in the Fourth Circuit’s Analysis of EPA Rulemaking

The Fourth Circuit failed to review the rulemaking re-

cord of the EPA with anything resembling the care and

scrutiny that the judicial review provisions of the Clean

Water Act and the APA require. In the proceeding below,

the Fourth Circuit merely acknowledged conflicts in the

evidence, and totally deferred to every Agency decision

with the conclusion that it was not arbitrary, capricious

or an abuse of discretion. This Court should not allow the

judicial review provisions of the Clean Water Act and the

APA to be rendered so devoid of meaning.

As set forth in the instant Petition for Writ of Certiorari

(‘‘Petition’’), the court failed to properly review the EPA’s

record of rulemaking. Petition at 14-17. This Court con-

sistently has recognized that a reviewing court must give

the rulemaking record of a federal agency careful atten-

tion, and must ensure that the agency’s determinations

are grounded soundly in the underlying record. The Court

recently emphasized this point in Bowen, Secretary of

Health & Human Services v. American Hospital Associa-

tion, No. 84-1529 (June 9, 1986). See, Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971),

counseling ‘‘a thorough, probing, in-depth review’; Bow-

man Transportation, Inc. v. Arkansas-Best Freight System,

Inc., 419 U.S. 281, 285 (1974), a court must make a

“searching and careful’ review of the agency’s rulemak-

ing; Frisby v. United States Department of Housing &

Urban Development, 755 F.2d 1052, 1055 (8rd Cir. 1985),

a reviewing court must take ‘‘a probing, ‘hard look’ at the

agency’s action.”

In this case, the Fourth Circuit simply failed to afford

the degree of scrutiny that the foregoing decisions require.

As set forth in the Petition, the court’s review was in-

adequate in several respects. First, the court ignored the -

parties’ principal argument that EPA wrongfully distorted

the data upon which it based its lead concentration limits,

and improperly disregarded data submitted by the indus-

try. The court accordingly validated lead concentration lim-

its that were based upon erroneous data and are technically

infeasible. Petition at 11-12.

Second, the court also overlooked the challenge

petitioners made to EPA’s adoption of filtration as the

model technology for the industry. Jd. Petitioners dem-

onstrated that while the industry uses this technology, it

cannot achieve the promulgated effluent limitations. The

failure of the court to even address important arguments

regulated parties make is not consistent with appropriate

standards of judicial review.

If the level of review the court gave in this instance is

sustained, the EPA will have the first—and final—say as

to how regulated parties behave. This Court cannot allow

the federal appellate courts to relax their judicial review

responsibilities merely because the rulemaking record is

complex and technical.

2. The Writ Should Issue to Correct the Fourth Cir-

cuit’s Failure to Address the Lack of Opportunity

for Notice and Comment

As set forth in the petition, the court also ignored the

petitioners’ argument that the EPA violated the notice and

comment provisions of the Administrative Procedure Act

in failing to give public notice of, and allow comment upon,

certain changes EPA made in the lead concentration val-

ues and flow allowances it had promulgated. Petitioners

also demonstrated that the industry was not provided with

proper notice that the extensive data it had developed and

submitted to EPA was going to be totally rejected by the

Agency. Petition at 13. The failure of the Agency to com-

ply with the notice and comment requirements is a pro-

found error that goes to the heart of the administrative

law process. The refusal of the court even to acknowledge

petitioners’ challenge on this issue is a serious matter, and

undermines the right to meaningful judicial review of

agency action.

The complexities that necessarily will attend future EPA

rulemaking proceedings underscore the magnitude of the

court’s error in this regard. In the future, EPA rulemaking

will become increasingly complicated as the Agency strug-

gles to promulgate and revise technical standards for a

wide variety of industries. The empirical data bases upon

which these standards will be predicated will continue to

expand. The notice and comment provisions of the Ad-

ministrative Procedure Act will assume increasing signif-

icance as affected parties submit relevant data and

comment upon the data that EPA is considering. Only

through the dialogue between the EPA and affected in-

dustries—which the notice and comment requirements are

calculated to ensure—will the Agency promulgate econom-

ically and technically feasible effluent limitations.

Because the notice and comment requirements in the

future will become increasingly important, this Court must

ensure that these requirements are not weakened. To ig-

nore notice and comment deficiencies in agency rulemak-

ing, and to approve the action of the agency because the

record is complex—as the court did in the proceeding be-

low—is to endanger the ability of parties who are subject

to federal regulations to challenge federal rulemaking.

Vv. CONCLUSION

For the foregoing reasons, and those set forth in Petition

for Writ of Certiorari to the United States Court of

Appeals for the Fourth Circuit, the instant petition for

writ of certiorari should be granted.

Respectfully submitted,

STEPHEN E. ROADY

Counsel of Record

ANDREWS & KuURTH

1730 Pennsylvania Ave., N.W.

Washington, DC 20006

(202) 662-2700

Counsel for Amicus Curiae

Leather Indusimes of America

Dated: June 1986

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