Amicus Curiae Brief — Chemical Manufacturers Ass'n v. Natural Resources Defense Council, Inc.

Seer VVUlL, U.de

FILED

i : JAN 16 GT

: JOSEPH F. SPANIOL, JR.

eLERK

No. 86-239

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1986

CHEMICAL MANUFACTURERS ASSOCIATION,

Petitioner,

We

NATURAL RESOURCES DEFENSE COUNCIL, INC., 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 THIRD CIRCUIT

JOHN L. WITTENBORN

(Counsel of Record)

JOEL M. MITNICK

B. MICHAEL HODGE

COLLIER, SHANNON, RILL & Scott

1055 Thomas Jefferson Street, N.W.

Washington, D.C. 20007

(202) 342-8400

Counsel for Leather Industries of

America

January 1987

SA NE NEL TE A SETA ER

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

fies 3 Mia's 4

ee epee a TR idk

QUESTIONS PRESENTED

The questions presented are:

1.

Whether the Court of Appeals lacked jurisdiction

under section 509(b\1) of the Clean Water Act

to review the adequacy of sludge management

regulations under section 405 of the Clean Water

Act.

. Whether the underlying action challenging EPA’s

removal credit regulations based upon the ab-

sence of comprehensive sludge management reg-

ulations under section 405 was timely.

. Whether EPA may allow removal credits under

section 307(b\1) without first promulgating com-

prehensive sludge management regulations un-

der section 405.

ii

TABLE OF CONTENTS

EP Ea - .ovvncrsntesvctdensicndonvinsuiionaendtienhoussonmeaaiaauiataii

STATEMENT OF THE CASE AND SUMMARY

OF BERRI E sisncsescviemsssarepinaidicteorenaacinaietnnens

REASON FOR GRANTING THE WRIT ...............

The Writ Should Issue To Avoid Conflicts

With Decisions Of This Court And Other

Courts Of Appeals Regarding Original Ap-

pellate Court Jurisdiction Under The Clean

WRG Bee oscserciiesssssserneenseiapemaanicnen

CONCEGIIIN ocsscrssessseavssenutosnanenesinienibantupientiaiiatn

ill

TABLE OF AUTHORITIES

CASES: Page

Bender v. Williamsport Area School Dist., 106 S.Ct.

i I OE ric cn nacwehexetvnioncsnshanenenes 6

Bethlehem Steel Co. v. EPA, 5388 F.2d 513 (2d Cir.

ail asi viciacignnsntinidecnkesbasink sostudouimseceeete 7

City . Baton Rouge v. EPA, 620 F.2d 478 (5th Cir.

SEE ic ciara seine aenbeihiadlbnankalansanedeiaaseiusiiev ins 7

City ~ Seabrook v. EPA, 659 F.2d 1349 (5th Cir.

1981), cert. denied, 459 U.S. 822 (1982) ...... 9

Eagle-Picher Industries, Inc. v. EPA, 759 F.2d 905

I si slurs cn ccinheeubannvinepchentes 9,13

E. I. duPont de Nemours & Company v. Train, 430

i ccncacuonsvensvebonveovevsseses 2

Geller v. FCC, 610 F.2d 973 (D.C. Cir. 1979) .... 13

Homestake Mining Co. v. EPA, 584 F.2d 862

cds thtveneecpetenivysecses 9

Investment Company Institute v. Board of Gover-

nors, 551 F.2d 1270 (D.C. Cir. 1977) _.......... 10

National Association of Metal Finishers v. EPA,

719 F.2d 624 (3d Cir. 1983), rev’d in part sub

nom. Chemical Manufacturers Association v.

Pee TP Bi EEO CROC) sccsccccsccccscccconevens 10

NRDC v. EPA, 673 F.2d 400 (D.C. Cir.) cert. de-

ae BP Fo) se 9

NRDC v. NRC, 666 F.2d 595 (D.C. Cir. 1981)... 9

NRDC v. Thomas, 790 F.2d 289 (3d Cir. 1986).... 7,8,13

Pacific Legal Foundation v. Costle, 586 F.2d 650

(9th Cir. 1978), rev’d on other ees 445

ark coninisduactanicceneveoons specseoesss 12

Texas v. ICC, 749 F.2d 1144 (5th Cir.), cert. ined

105 S.Ct. 3513 TE REITER ee PTD 9

Texas Municipal Power Agency v. EPA, 799 F.2d

sii ccictchvincaivevensecsversesvesber 9

iia.

iv

Table of Authorities Continued

Page

STATUTES:

Be Rr i ee I © saenriceistesnenskcaidwscbacstacolinn 7

Se Sie Be I BED nencsscnscncseniscciocecssanie 5,8

/ Be 3 fe ea aRben Srna rsa mee mene 3,10,11

Te ier, ID seas Seancocesccovestesscseicspniens 7

BO Ua, BLE CRUD sercésesicosnccsccusassceess 4,5,6,7,9

ADMINISTRATIVE ACTIONS:

BE FOG. TH, Be FO CRO) | waceccnvensccccssiasccccesenccete 11

OE FI es I | Sti cciegodcscecocesdscdsctessancen, 12

AT FOG. HOW. GE,BSS CRBS) ccvcccssccccsccsccoscvsctoccesens 2

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1986

AON AP met Le ate RN at wink SOM, “

No. 86-239

CHEMICAL MANUFACTURERS ASSOCIATION,

Petitioner,

v.

NATURAL RESOURCES DEFENSE COUNCIL, INC., 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 THIRD CIRCUIT

INTRODUCTION AND STATEMENT OF INTERESTS

Leather Industries of America (‘‘LIA’’) respectfully

submits this brief as amicus curiae in support of the

Petition for Writ of Certiorari to the United States

Court of Appeals for the Third Circuit (hereinafter

cited as “CMA Pet.’’) filed by the Chemical Manu-

facturers Association (““CMA’’) on August 16, 1986.

LIA, formerly the Tanners’ Council of America, is

one of the oldest trade associations in America. Its

members are tanners of leather and manufacturers of

leather goods, and it represents the substantial ma-

jority of leather tanners and finishers in the United

States. Many of LIA’s member companies are indirect

dischargers for whom categorical pretreatment stand-

ards promulgated by the Environmental Protection

Agency (‘““EPA’’) on November 23, 1982, went into

effect on November 23, 1985. See 47 Fed. Reg. 52,848.

In reliance upon EPA’s removal credit regulations

promulgated in 1978 and amended in 1981 and 1984,

many of these companies have applied for or received

removal credits from Publicly Owned Treatment

Works (“POTWs’’) into which they discharge. These

removal credits have allowed LIA member companies

to avoid the unnecessary expense of construction and

operating pretreatment technology which merely du-

plicates the treatment of the POTW.

The opinion of the Court of Appeals for the Third

Circuit (“Court of Appeals’ or “Third Circuit’’) in-

validates the EPA regulatory program under which

these removal credits were issued and therefore voids

the credits upon which the companies have reasonably

relied. Upon issuance of the Court of Appeals man-

date, those companies will be in violation of the Clean

Water Act and subject to potential civil penalties.

Because its members have a direct stake in the out-

come of this proceeding, LIA hereby files its brief in

support of the petition for writ of certiorari filed by

the CMA.!

‘LIA also supports the Petition filed by the Chicago Asso-

ciation of Commerce and Industry, et al., No. 86-608. That

petition urges review of the Third Circuit’s ruling on certain

technical deficiencies of the regulations as well as the absence

of sludge regulations. The focus of this brief, however, is upon

the perceived jurisdictional inadequacy of that portion of the

Third Circuit’s ruling which invalidated the 1984 pretreatment

regulations pertaining to removal credits on grounds that EPA’s

Qe ee

EPA acknowledges that industries have reasonably

relied upon removal credits. EPA Brief in Opposition

at 9 (hereinafter cited as ‘‘EPA Br. Opp.’’). EPA also

agrees that invalidation of those credits by the Court

of Appeals on the erroneous ground that EPA’s sludge

regulations are inadequate is incorrect. Jd. However,

EPA has declined to urge review of the decision be-

low because it believes that the harm will be cured

by promulgation of EPA’s sludge regulations.

EPA’s sludge management regulations were al-

ready overdue when the first removal credits regu-

lations were promulgated in 1978. Since that time,

EPA has consistently promised that its regulations

are “close to proposal.’”’ See CMA Pet. at A-49. In

its Brief in Opposition, EPA again acknowledges that

the rulemaking schedule has been delayed. EPA Br.

Opp. at 10. Even if EPA adheres to its newly pro-

posed schedule, LIA members will face irreparable

harm as a consequence of the opinion of the Court

of Appeals invalidating removal credits. Loss of re-

moval credits will force companies to spend thousands

of dollars individually to construct treatment equip-

ment which will become unnecessary when removal

credits are reissued. It is facile at best for EPA to

claim that this ruling by the Court of Appeals inval-

idating removal credits based upon the absence of

section 405 regulations and subjecting companies to

potential irreparable harm is not worthy of correction

by this Court.

LIA believes that review by this Court is essential

to correct the errors in the opinion below and to avoid

underlying sludge management regulations under section 405 (33

U.S.C. § 1345) (hereinafter referred to as ‘‘section 405’’) are

inadequate.

the adverse effects which improper revocation of re-

moval credits would have upon LIA members. This

case raises significant issues of the jurisdiction of the

courts to oversee an agency’s administration of the

law. Settled administrative decisions upon which reg-

ulated parties have extensively relied should not be

subject to constant and continuing review by the

courts. The Clean Water Act explicitly so provides by

limiting the cases which may be heard directly by

courts of appeals and by requiring such suits to be

brought within 90 days. See 338 U.S.C. §

1369(b\(1)(1982).

STATEMENT OF THE CASE AND SUMMARY OF THE

ARGUMENT

LIA members, together with municipalities, have

invested substantial resources in compliance with the

pretreatment regulations promulgated by EPA under

the Clean Water Act. As intended by Congress, those

investments have served to protect and conserve the

Nation’s water supplies. As part of this regulatory

scheme, LIA members, and others, have been able to

avoid investment in certain technologies and equip-

ment that merely duplicates the «wastewater treat-

ment of POTWs. The substantial investment decisions

necessitated by EPA’s pretreatment regulations must

be made well in advance of compliance deadlines in

order to avoid costly civil penalties.

If EPA’s pretreatment regulations are to require

important investment decisions on the part of indus-

try and government, it is essential to fairness that

those making the investment decisions be entitled to

rely on the finality of the rulemaking on which those

decisions are based. In this case, Respondent Natural

Resources Defense Council’s (““NRDC’s’’) challenge to

EPA’s rulemaking was untimely and should be juris-

dictionally barred. NRDC initiated its challenge to the

rulemaking several years after promulgation of the

standard, in clear contravention of the Clean Water

Act’s requirements that such challenges be initiated

within 90 days of promulgation. See 33 U.S.C.

§ 1869(b\1) (1982). Because NRDC failed to initiate

this action in a timely fashion, its lawsuit should have

been dismissed by the Court of Appeals. In addition,

the Court of Appeals lacked original jurisdiction to

address the validity of EPA’s sludge management

regulations.

Finally, the Court of Appeals erred by invalidating

the pretreatment removal credits provisions of the

standard because EPA had not promulgated a ‘‘com-

prehensive framework”’ of sludge disposal regulations.

We agree with the CMA that neither the statute nor

its legislative history provides any requirement for

prior issuance of sludge disposal regulations. Rather,

the statute merely, but explicitly, provides that re-

moval credits can be approved so long as the resulting

discharge ‘“‘does not prevent’? the POTW from com-

plying with sludge use or disposal practices in ac-

cordance with section 405 of the Clean Water Act.

33 U.S.C. § 1817(bX1\1982). The conclusion of the

Third Circuit Court below that this language presup-

poses the comprehensive and final issuance of sludge

disposal regulations is totally unsupportable and

should be vacated.

REASON FOR GRANTING THE WRIT

The Writ Should Issue To Avoid Conflicts With Deci-

sions Of This Court And Other Courts Of Appeals Re-

garding Original Appellate Court Jurisdiction Under The

Clean Water Act

I. The Third Circuit Exceeded Jurisdiction Limitations Re-

quired by the Clean Water Act and Accepted By Other

Courts of Appeals in Holding EPA’s Removal Credit

Regulation Invalid Because of the Absence of Sludge

Management Regulations

Courts of appeals are courts of limited jurisdiction.

See Bender v. Williamsport Area School Dist., 106

S.Ct. 1326, 1331 (1986). In cases challenging Agency

action under the Clean Water Act, original court of

appeals jurisdiction is available only for certain limited

categories of cases. See 33 U.S.C. § 1369(b\1) (1982).

In addition, challenges under section 509 must be

brought within ninety days of promulgation of the.

challenged action. Jd. In this case, the challenge to

removal credits based upon the absence of adequate

sludge management regulations under section 405 vi-

olates both of these jurisdictional precepts.

A. The Court of Appeals lacked original jurisdiction to

review the validity of EPA’s regulation of sludge

management and disposal

Section 509(b)\1) of the Clean Water Act provides

for original court of appeals jurisdiction only over

limited EPA actions.? These are Agency actions un-

2 Section 509(b\1) reads: ‘‘Review of the Administrator's ac-

tion (A) in promulgating any standard of performance under

section 1316 of this title, (B) in making any determination pur-

suant to section 1316(b\1\C) of this title, (C) in promulgating

any effluent standard, prohibition, or pretreatment standard un-

a CMe eateatihtdtenidg By oe

dertaken upon well-developed administrative records,

for which direct review by courts of appeals is par-

ticularly appropriate. See E.J. duPont de Nemours &

Company v. Train, 430 U.S. 112 (1977). Other circuit

courts have held that Agency actions not falling within

the scope of these specifically enumerated categories

of section 509(bX1) are not reviewable by courts of

appeals. City of Baton Rouge v. EPA, 620 F.2d 478,

480 (5th Cir. 1980); Bethlehem Steel Co. v. EPA, 538

F.2d 513, 518 (2d Cir. 1976). Review of section 405

regulations is not among the enumerated categories

of action subject to direct review by courts of appeals.*

In this case, the Third Circuit directly reviewed the

adequacy of EPA’s section 405 sludge management

regulations. It held that EPA’s existing sludge reg-

ulations are inadequate because they ‘“‘do nothing to

advance the congressional goal of making sludge into

a productive asset rather than a toxic liability.’”” NRDC

v. Thomas, 790 F.2d 289, 314 (8d Cir. 1986). The

Court of Appeals also ruled that EPA could not rely

der section 1317 of this title, (D) in making any determination

as to a State permit program submitted under section 1342(b)

‘of this title, (E) in approving or promulgating any effluent lim-

itation or other limitation under section 1311, 1312, or 1316 of

this title, and (F) in issuing or denying any permit under section

1342 of this title, may be had by any interested person in the

Circuit Court of Appeals of the United States for the Federal

Judicial District in which such person resides or transacts such

business upon application by such person.’”’ 33 U.S.C. § 1369(b\1)

(1982).

’ Under section 505 of the Clean Water Act, district courts

are granted express jurisdiction to review actions predicated

upon the performance of certain non-discretionary duties. 33

U.S.C. § 1365(a) (1982). General jurisdiction for district court

review also exists under 28 U.S.C. § 1331 (1982).

upon regulations promulgated under other ‘environ-

mental statutes, despite the fact that such regulations

establish sludge management restrictions, albeit not

under section 405. Jd. In so holding, the Court of

Appeals had before it no administrative record sup-

porting either the existing section 405 regulations or

the scope and applicability of other regulations af-

fecting sludge disposal.‘

Although the Court of Appeals may have had direct

jurisdiction pursuant to section 509 to review removal

credit regulations promulgated under section 307, the

Court of Appeals clearly lacked jurisdiction to review

the adequacy of section 405 regulations. Section 307

only requires that removal credits not prevent ‘‘sludge

use or disposal by such works in accordance with

[section 405 of this Act].”” 33 U.S.C. § 1317(b1\(1982).

This provision does not afford the Court of Appeals

jurisdiction to review the validity of existing section

405 regulations. Rather, it only affords the court au-

thority to compare removal credit regulations under

section 307 with existing section 405 regulations to

assure that removal credits do not “prevent”? com-

pliance with promulgated sludge management require-

ments.

B. The Court of Appeals lacked jurisdiction because

NRDC’s time to challenge the removal credits based

upon the absence of section 405 regulations had ex-

pired.

Section 509(b) of the Clean Water Act provides that

a regulation otherwise subject to review in the court

* LIA also joins CMA’s argument that the ruling of the Third

Circuit failed to aecord sufficient deference to a reasonable

Agency interpretation of its own regulations. CMA Pet. at 17-

af.

of appeals may only be challenged by a Petition for

Review filed within ninety (90) days of promulgation

unless the challenge is based solely on grounds which

arose after the ninefg day period expired. 33 U.S.C.

§ 1369(b\1). This limit is jurisdictional and is

premised upon the same important policy considera-

tions which underlie other filing and timeliness limi-

tations, namely administrative repose. See NRDC v.

EPA, 673 F.2d 400, 406 (D.C. Cir.), cert. denied, 459

U.S. 879 (1982); Homestake Mining Co. v. EPA, 584

F.2d 862, 863 (8th Cir. 1978). See also Texas v. ICC,

749 F.2d 1144, 1146 (5th Cir.), cert. denied, 105 S.

Ct. 3513 (1985) (enforcing similar sixty (60) day re-

view provision for Interstate Commerce Commission

rulings); Eagle-Picher Industries, Inc. v. EPA, 759

F.2d 905, 911 (D. C. Cir. 1985) (construing ninety

(90) day review provision of the Comprehensive En-

vironmental Response Compensation and Liability

Act); City of Seabrook v. EPA, 659 F.2d 1349, 1370

(5th Cir. 1981), cert. denied, 459 U.S. 822 (1982)

(strictly enforcing similar sixty (60) day judicial review

provision in Clean Air Act). Parties must be able to

rely upon the finality of Agency rulemaking since

important investment decisions must be made well in

advance of compliance dates to avoid substantial civil

penalties. Moreover, these time limitations impart fi-

nality to the administrative process, thus conserving

administrative resources. Texas Municipal Power

Agency v. EPA, 799 F.2d 1738, 175 (5th Cir. 1986);

NRDC v. NRC, 666 F.2d 595, 602 (D. C. Cir. 1981).

Regulatory provisions which remain unchallenged dur-

ing the ninety day period must not be subject to

future challenge absent a showing of significant new

facts or circumstances. Eagle-Picher Industries, 759

10

F.2d at 911: Investment Company Institute v. Board

of Governors, 551 F.2d 1270, 1280 (D.C. Cir. 1977).

1. NRDC’s Chalienge Was Not Brought Within 90

Days.

For the leather tanners, decisions regarding the

installation of water pollution control technology rip-

ened in November of 1982 when EPA promulgated

effluent guidelines for the industrial category, includ-

ing pretreatment standards for existing sources

(‘“PSES’’) and pretreatment standards for new sources

(‘‘PSNS’’) for indirect dischargers. In effect at that

time, although under challenge as too stringent, were

EPA’s 1981 removal credit regulations. Those regu-

lations, including provisions allowing for the approval

of removal credits prior to promulgation of compre-

hensive sludge management regulations under section

405 of the Clean Water Act, were upheld by the Court

of Appeals for the Third Circuit without a challenge

by NRDC to the absence of section 405 regulations.

NRDC was a party to that litigation. National As-

sociation of Metal Finishers v. EPA, 719 F.2d 624,

646 (3d Cir. 1983), rev'd in part sub nom. Chemical

Manufacturers Association v. NRDC, 470 U.S. 116

(1985).

When NRDC raised its challenge in 1984, EPA’s

rulemaking on the relationship between removal cred-

its and section 405 regulations was already well set-

tled. In fact, the relationship between removal credits

issued under section 307(bX1) and sludge use guide-

lines issued under section 405 of the Clean Water Act

has remained virtually intact since 1978. Neither the

1981 nor the 1978 regulations required development

of final comprehensive sludge management regula-

soot, oie anmeeldaaaeallll

CRA PE VU cata Wests Na

11

tions under section 405 as a precondition for program

authorization for removal credits by POTW.

In its preamble to the 1978 regulations EPA an-

nounced:

Where Section 405 criteria are not yet avail-

able, applicable EPA and State guidance will

be used and the municipal NPDES permit

will condition continuation of the allowances

for POTW removal upon compliance with

Section 405 criteria whenever it is published.

43 Fed. Reg. 27,736, 27,765 (June 26, 1978). The

applicable EPA and State guidance to be used pend-

ing publication of section 405 regulations included

regulations issued under the authority of the Clean

Air Act, the Toxic Substances Control Act (‘““TSCA’’),

existing ocean dumping regulations, subtitle C of the

Solid Waste Disposal Act, and State criteria. Clearly,

the parties were on notice in 1978 that EPA did not

consider comprehensive regulations under section 405

of the Clean Water Act as a condition precedent to

the issuance of valid removal credits. NRDC did not

challenge this interpretation.

In its 1981 regulations, EPA repeated its view that

while approval of removal credits by a POTW requires

compliance by the POTW with applicable State and

Federal sludge management requirements, authori-

zation to grant removal credits does not require prior

promulgation of special rules embracing all such

standards under section 405 of the Clean Water Act:

[T]he POTW first determines the manner in

which it will dispose of its sludge, then it

identifies and complies with the appropriate

Federal regulations or guidelines pertaining

12

to that method of disposal. Section 403.7 pro-

vides that the POTW will not be able to re-

ceive removal allowance approval [Section

403.7(b\(4)] or maintain an approved level of

removal [Section 403.7(f\2)] if it fails to com-

ply with Federal, State or local requirements

applicable to its selected method of sludge

disposal.

46 Fed. Reg. 9404, 9427 (January 28, 1981). Again,

EPA suggested that such approval could be based

upon a variety of) applicable Federal regulations or

guidelines relating to sewage sludge disposal, includ-

ing the Clean Air Act, TSCA, and the Resource Con-

servation and Recovery Act, as well as the Clean

Water Act. Jd. at 9428. No requirement for compre-

hensive section 405 regulations was set forth.

Thus, the grounds which the Court of Appeals as-

serts as its basis for overturning EPA’s 1984 regu-

lations were clearly enunciated not once but twice

prior to 1984. EPA’s reliance upon this “patchwork’’

of regulatory authority rather than comprehensive

section 405 regulations was manifest in both 1978 and

1981. Interested parties, including NRDC, had the

opportunity to challenge this interpretation not once

but twice and failed to do so.

This portion of the regulations which is virtually

unchanged from previous rules should not be consid-

ered “fair game’’ for attack long after critical in-

vestment decisions have been implemented. Otherwise,

EPA could never adjust, fine-tune or amend regula-

tions without subjecting its entire rule to endless re-

view. Pacific Legal Foundation v. Costle, 586 F.2d

650, 655 (9th Cir. 1978), rev'd on other grounds, 445

U.S. 198 (1980) (modification of existing permit -af-

13

fects only the meaning and scope of those provisions

and does not afford a basis for judicial review of all

provisions of the permit). Companies which have rea-

sonably relied upon the finality of such regulations

should not later be forced to bear unnecessary bur-

dens, including additional compliance costs and the

threats of civil penalties, when such regulations are

belatedly attacked.

2. No new grounds have arisen to allow review.

The Third Circuit held that NRDC’s claim is based

upon ‘“‘grounds’”’ which arose after the 90th day fol- —

lowing promifgation of earlier removal credit rules.

NRDC v. Thomas, 790 F.2d at 312-13. These

“‘grounds”’ actually consist only of EPA’s continuing

failure to promulgate section 405 regulations. How-

ever, as the Court of Appeals acknowledges, the sec-

tion 405 regulations which it finds critical to approval

of any removal credits were already overdue in 1978

and in 1981 when prior versions of the regulations

were promulgated. Jd. Nothing but the passage of

time and the subjective expectations of NRDC have

changed since then. Neither of these considerations

can justify an extension of a jurisdictional filing re-

quirement.

New “grounds” ordinarily must include events

which “‘occur or information [which] becomes available

after the statutory review period expires that essen-

tially create a challenge that did not previously exist.”

Eagle-Picher Industries, 759 F.2d at 913 (emphasis

added); Geller v. FCC, 610 F.2d 973, 977-78 (D.C.

Cir. 1979). Here the grounds for NRDC’s challenge

existed in 1978 and 1981. Accordingly, NRDC’s chal-

lenge to the 1984 rules is time barred, and the Court

of Appeals lacked jurisdiction to hear that claim. This

14

requirement is intended to ensure finality of admin-

istrative decisions upon which regulated parties must

make financial and other business actions. The repose

of established regulations is central to the fairness of

our administrative process. The Third Circuit’s ruling

in this case, in contravention of this well-established

rule, has caused imminent irreparable harm to LIA

members. This harm can only be prevented by the

granting of the petition.

CONCLUSION

For the foregoing reasons, the Petition for Writ of

Certiorari to the United States Court of Appeals for

the Third Circuit filed by the Chemical Manufacturers

Association should be granted.

Respectfully submitted,

JOHN L. WITTENBORN

Counsel of Record

JOEL M. MITNICK

B. MICHAEL HODGE

COLLIER, SHANNON, RILL & SCOTT

1055 Thomas Jefferson Street, N.W.

Washington, D.C. 20007

(202) 342-8400

Counsel for Leather Industries of

America

Dated: January 16, 1987