Petition for a Writ of Certiorari — Bishop Processing Co. v. United States
Supreme Court brief1970
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QUERTEONS PRRSENTED 2.00.00. sccccsvccscccccscccccccees
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REASONS FOR GRANTING THE WRIT ..............00 0c e eee
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AppenpIx A—OPINions BELow:
Opinion of the Court of Appeals, dated March 3, 1970 ...
Opinion of the District Court, dated October 27, 1969 ..
Order of the District Court entered November 10, 1969 ..
AppENDIX B—STATUTES INVOLVED:
Clean Air Act, 42 U. S. C. §§1857a(a), 1857d(a),
1857d(b), 1857d(c)(1), 1857d-1 (1969) .........
Del. Code Ann., tit. 7, §§ 6202(a), 6203(b) (Supp. 1968)
39
45
48
Ce ee eel ts
Ie AS SPIT BELEO LAE MOLL LINE DOE IRE ESTA wa RNR I ea
AUTHORITIES.
Cases: Page
Aluminum Co. of America v. United States, 302 U. S. 230
COREE DP. sn vncncGhesc pecs vesevsesssndenssnevssevace 19
Artvale, Inc. v. Rugby Fabrics Corp., 303 F. 2d 293 (2d Cir.
SE nbn bVced vin seseeeuendes nce nt igdeueeexeeanucve 8
Atlantic Refining Co. v. ICC, 360 U. S. 19 (1959) ........ 19
Broch & Co. v. FTC, 368 U. S. 360 (1962) ............... 19
Chandler v. Fretag, 348 U. S. 3 (1954) .................. 28
Chrysler Corp. v. United States, 316 U. S. 556 (1942) .... 19
Crowe v. Cherokee Wonderland, Inc., 379 F. 2d 51 (4th Cir.
ee rr er rer rrr Er Tree 8
English v. McFarland, 285 F. 2d 267 (D. C. Cir. 1960) ...... 16
Fieming v. Huebsch Laundry Corp., 159 F. 2d 581 (7th Cir.
PTE: aaa eck dbbecavencesbcsecernckesdacseueeres 8
In re Hygrade Envelope Corp., 366 F. 2d 548 (2d Cir. 1966) 22
Jantzen & Co. v. FTC, 386 U. S. 228 (1967) .............. 17
Musicians Federation v. Wettstein, 379 U. S. 171 (1964) .. 26
NLRB v. Brandman Iron Co., 368 U. S. 399 (1962) ..... 16
NLRB v. Express Publishing Co., 312 U. S. 426 (1941) .. 18
NLRB v. Ochoa Fertilizer Corp., 368 U. S. 318 (1961) .... 16
Perma Life Mufflers v. International Parts Corp., 392 U. S.
Se CUED Seeds uo ekbsebes 45 Uenkcerenedsarsnenduns 18
People v. William Kent Estate Co., 51 Cal. Rptr. 215 (1st
Bt. GR. PU GR, SO) kos ks ce rccevccsesvescess 15
Ruberroid v. FTC, 343 U. S. 470 (1952) ................. 19
SEC v. Texas Gulph Sulphur Co., 401 F. 2d 833 (2d Cir.
DE hose ka sueeke nhs wha sndeds vee tvens es sev nree’ 22
Siebring v. Hansen, 346 F. 2d 474 (8th Cir..1965) ........ 9
Siegel Co. v. FTC, 327 U. S. 608 (1946) ..............005. 19 |
Swift & Co. v. United States, 276 U. S. 311 (1928) ......... 19
United States v. Atlantic Refining Co., 360 U. S. 19 (1959) .. 16
United States v. Swift, 286 U. S. 106 (1932) .............. 8
United States v. United Shoe Machinery Corp., 391 U. S. 244
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—_
AUTHORITIES (Continued).
Statutes: Page
Cal. Health and Safety Code § 24243 (West 1967) ........ 24
) Clean Air Act, 42 U. S. C. § 1857, et seq. ........... 2, 3, 6, 19, 23
Del. Code Ann., tit. 7, § 6200, et seq. (Supp. 1968) ......... 2,24
! Mass. Gen. Laws Ann. ch. 11, §31C (Supp. 1969) ......... 24
Other:
9 Bost. Gob. Bed. ©. Tew. FID CIBER) occ cccccscsccccvcses 24
1 Corbin on Contracts, §§ 95, 100, 107 (1963) ............. 10, 15
3 Corbin on Contracts, §§ 537-38, 542, 559 (1963) ........ 9, 14
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IN THE
Supreme Court of the United States
OcToserR TERM, 1969
ee
BISHOP PROCESSING CoO.,
A Bopy Corporate or THE StTaTE or MARYLAND
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT.
Petitioner prays that a Writ of Certiorari be issued to
review the judgment of the Court of Appeals for the Fourth
Circuit entered on March 3, 1970 affirming on Order of the
federal District Court of the District of Maryland at Balti-
more entered against Petitioner on November 10, 1969.
OPINIONS BELOW.
An opinion was filed by the United States District Court,
District of Maryland at Baltimore on October 27, 1969, a
copy of which is attached. It was not published to the
knowledge of petitioner.
An opinion was filed on March 3, 1970, by the United
States Court of Appeals for the Fourth Circuit, a copy of
which is attached, It has not as yet been published to the
knowledge of the petitioner.
' —
2 Petition for Writ of Certiorari
JURISDICTION.
The opinion and order of the United States Court of
Appeals for the Fourth Circuit was filed on March 3, 1970,
The Circuit Court initially ordered that Petition for Writ
of Certiorari be filed within 15 days from March 3, 1970,
This time limitation was extended by Judge Sobeloff until
April 1, 1970.
The basis of jurisdiction in this case is 28 U. S. (.
§ 1254(1).
QUESTIONS PRESENTED.
I. Whether the principles of law governing the inter-
pretation of agreements between private parties apply to
court-approved consent agreements.
II. Whether thirty-one instances of malodor over a
consecutive fourteen-week observation period constitutes as
a matter of law a violation of the federal Clean Air Act, 42
U. S. C. § 1857, et seqg., without regard for seasonal vari-
ations in relevant meteorologica! conditions (e.g., wind di-
rection and speed, temperature, humidity and precipitation),
the duration of each malodor, the degree of offensiveness of
each malodor, and the geographic pervasiveness of each
malodor.
III. Whether a series of unreasonable time limitations
imposed upon petitioner by the federal District Court and
federal Court of Appeals are such as to amount to a depri-
vation of due process of law.
STATUTES INVOLVED.
Federal Clean Air Act, 42 U.S. C. § 1857, et seq.
Delaware Air Pollution Control Act, Title 7, Section
6200, et seq.
BLEED THROUGH POOR COPY
Petition for Writ of Certiorari 3
STATEMENT.
This case involves the activities of the petitioner’s plant
which is in the business of rendering animal by-products.
The allegation presented by the respondent, United States
of America, is that malodor eminating from the petitioner’s
plant located in Bishop, Maryland is pervading the town of
Selbyville in the State of Delaware.
Prosecution of the case is based upon the federal Clean
Air Act, 42 U. S. C. § 1857, et seq., and it is under this Act
that jurisdiction was founded in the federal District Court
for the District of Maryland at Baltimore.
The petitioner conducts a business whereby animal
wastes are cooked, water is removed, fat is extracted, and
the remaining substance is reduced to a highly nutritional
meal used as an ingredient in animal feed. It employs ap-
proximately 35 to 40 men in an area which is designated as
‘‘depressed’’ by the United States Department of Labor.
Production began in September of 1955. On March 7,
1968, after a series of United States Department of Health,
Education and Welfare conferences under the provisions of
the federal Clean Air Act 42 U.S. C. § 1857, et seq., a com-
plaint was filed by the government against petitioner in the
United States District Court for the District of Maryland
at Baltimore (4A to 13A). The complaint charged that the
petitioner by discharging malodorous pollutants into the air
had caused ‘‘air pollution’’ in the town of Selbyville, Dela-
ware and environs (4A). It was alleged that these odors
endangered the health and welfare of the people of the town
(4A).
On November 1, 1968, the complaint was resolved by a
consent decree signed by petitioner and respondent whereby
petitioner agreed in substance to terminate all rendering
activities if it could be established that petitioner had com-
mitted malodorous air pollution in the State of Delaware
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4 Petition for Writ of Certiorari
(43A). The parties agreed that the Director, Air Pollution
Control Division, Water and Air Resources Commission of
the State of Delaware, be selected to make this determination.
The petitioner was convinced that no air pollution, in
fact, existed. Nevertheless, the respondent on February 7,
1969, filed a motion seeking to close the petitioner’s plant.
Thereafter, a hearing was set up for March 3, 1969, in the
federal District Court, but was actually held on March 4,
1969 due to the Judge’s direction. The federal District
Judge refused to issue the injunction requested by the peti-
tioner and reserved ruling (66A, 67A, 68A).
Thereafter, no action took place for three full months.
Then in May, 1969, the respondent began to gather mate-
rials. A full six months after the first hearing, on September
12, 1969, the respondent filed another motion seeking the
same injunction and on September 24, 1969, a summary
hearing was held (69A).
On October 27, 1969, the lower court filed an opinion
and on November 10, 1969, it filed an order granting the
injunction. The order was stayed pending appeal.
Appeal was thereafter made to the United States
Court of Appeals for the Fourth Cireuit on an accelerated
basis. It is of great importance to note that throughout
this procedure since November 1, 1968, all matters relating
to petitioner were placed on an accelerated basis, whereas
those relating to respondent were permitted to proceed at
a casual rate.’
On March 3, 1970, the Fourth Circuit Court affirmed
the lower court. It is from that decision that this appeal
is taken. »*
1. Counsel for petitioner came into this case on February 19,
1969, due to withdrawal of prior counsel. He was permitted six
days by the District Court in which to review the entire case, write
a complex brief, have it administratively prepared and submitted.
On September 12, 1969, respondent filed its second motion with
attachments to the federal District Court of the District of Maryland.
w—
Petition for Writ of Certiorart 5
REASONS FOR GRANTING THE WRIT.
I.
Whether the legal principles governing the interpre-
tation of agreements between private parties apply to court-
approved consent agreements? This question is of primary
importance to all those fields of law in which a government
agency is charged with the responsibility of administering
and enforcing statutory standards and endeavors to carry
out in part its responsibility through consent agreements.
A few examples of the areas of law affected are: antitrust ;
unfair and deceptive acts and practices; securities; labor;
transportation and shipping; food, drugs and cosmetics ;
agriculture; communications; and environmental control.
On Wednesday, September 18, 1969, counsel for petitioner
finally received a copy of the documentation due to mismailing. He
was given until September 24, 1969 (six days) to review over 150
pages of material, write a brief, have it prepared and filed and prepare
an oral ment.
On November 10, 1969, the order of the District Court was
anges Soe. Notice of appeal was filed by petitioner on November
13, 1969.
The record of trial was not completed until approximately No-
vember 26, 1969, and petitioner designated the record by December
2, 1969. Petitioner’s brief was to be completed by December 22,
1969, (20 days after designation of record), and the printed form
was to be submitted four days later.
For the first time, — was unable to overcome the incredi-
ble time limitation and, although the written brief was completed
on time, the printed matter was delayed for one additional week.
Thereafter, only seven days were permitted for the purpose of
filing a reply brief. This time limitation was also met with success
by the petitioner.
When appeal of the Circuit Court order was considered, it was
realized that a misinterpretation of the court’s opinion had been made.
The Circuit Court discussed the subject of a 15 day time period.
Petitioner assumed that this meant that petitioner must indicate a
desire to appeal in 15 days. The true meaning was that the Petition
for Writ of Certiorari was to be filed in 15 days. When this error
of interpretation was ined to the Circuit Court judge, he al-
lowed a seven day period during which to prepare, print and file the
Petition for Writ of Certiorari.
ma
6 Petition for Writ of Certiorari
Unlike a money judgment, these consent judgments have
continuing importance. Indeed, they play a central role ip
the enforcement programs of the governmental agencies
operating in the above-mentioned areas of law. The econ
sent agreement used in above-mentioned areas of law typi-
cally contain an injunctive-type prohibition to insure com-
pliance with the statutory standards by the private party
signing the decree. At the same time, because consent
agreements require relatively little time and effort, the
agency is able to maximize the use of its enforcement re-
sources. Like private agreements, questions of interpre-
tation arise and some method is needed to resolve these
questions.
This Petition involves a court-approved consent agree-
ment in a case brought under the federal Clean Air Act,
42 U.S. C. § 1857, et seq. It presents the question whether
contract principles govern or ought to govern the interpre-
tation of consent agreements. Petitioner asks this Court to
rule that contract principles of interpretation apply to con-
sent agreements and to remand this matter with instruc-
tions that these principles of interpretation be applied to
the facts of this case and that additional evidence be ad-
duced, if necessary, under the applicable contract principles
of interpretation.
The District Court and Court of Appeals in interpret-
ing the consent decree involved in this case have refused to
apply the principles of law governing the interpretation
of private agreements. In particular, these courts did not
seek to determine the intent of the parties as this intent is
determined in private agreements. In consequence, they
have effectively ruled that the following principles of con-
tract law are inapplicable to court-approved consent agree-
ments: (1) Vagueness of expresion, indefiniteness, and un-
certainty as to any essential term of an agreement prevent
the creation of an enforceable contract; (2) failure to
a
Petition for Writ of Certiorart 7
with @ condition renders an agreement unenforce-
ghle by the party obligated to perform the condition; (3)
where there in a materially different understanding as to an
exential term, an enforceable agreement is not formed;
(4) when an agreement is ambiguous on its face resort may
be and indeed should be made to the circumstances sur-
rounding the agreement; and (5) when one party knows or
has reason to know that the other party has in mind a par-
ticular interpretation of the agreement, the party with
knowledge is bound by the interpretation of the other party
even if the party with knowledge intended another inter-
pretation.
Instead of treating the consent decree as a private
agreement for purposes of interpretation, the District
Court and Court of Appeals have treated the consent decree
as a decree or order entered by litigation. The meaning
they sought to ascertain was not that of the parties at the
time of the signing of the agreement, but that of the Dis-
rict Court judge in accepting and approving the consent
agreement. The District Court and Court of Appeals
have reasoned that the relevant meaning is that attached
by the District Court judge when he accepted the consent
settlement and that since that meaning is ‘‘plain’’ to the
District Court judge, that meaning prevails regardless of
whether the consent decree is otherwise indefinite, the sur-
rounding circumstances indicate that the parties had a dif-
ferent meaning, one of the parties did not perform an im-
plied condition, and the government knew that the petitioner
in signing the agreement intended the meaning of the decree
which it now asserts.
Decree or orders after litigation and consent decrees
or orders are not the same and cannot be treated the same
for purposes of interpretation. In the decree entered after
trial, the judge is the final arbiter of the content of the
decree. He decides, if not initially, at least finally, what
8 Petition for Writ of Certiorari
the decree must include and it is his intent that governs
and is sought to be captured by the language of the decree,
In a consent agreement, the judge accepts or approves the
agreement and incorporates it into a decree so that it may
carry the weight of the judiciary and be enforced by con-
tempt if necessary. While the judge converts the private
agreement into a judicial act by endorsement and incorpo-
ration, for purposes of interpretation the consent decree
remains a private agreement. The language is that of the
parties and not the court. The intent sought to be cap-
tured in the agreement is that of the parties, not the court.
The intent that governs the agreement is that of the parties,
not the court. .
These differences between a consent judgment and a
judgment~ after litigation have been recognized by the
United States Court of Appeals for the Fourth Circuit
itself. Crowe v. Cherokee Wonderland, Inc., 379 F. 2d 51,
54-55 (4th Cir. 1967) (a consent judgment is ‘‘no more
than a judicially approved contract’’; it is ‘‘subject to all
contract defenses, including nonperformance and failure
of consideration’’). For reasons that it decided not to
state, the Court of Appeals chose to ignore its own recent
decision. The United States Court of Appeals for the
Second Circuit has also ruled that a ‘‘consent decree rep-
resents an agreement by the parties which the court cannot
expand or contract.’’ Artvale, Inc. v. Rugby Fabrics Corp.,
303 F. 2d 283 (2nd Cir. 1962).
United States v. Swift, 286 U. S. 106, 114-15 (1932),
has spawned a number of cases stating that a consent judg-
ment is not a contract but a judicial act. These cases are
not inconsistent with above statement. They involve
modification of a decree or other questions unrelated to
interpretation of a decree. Fleming v. Huebsch Laundry
Corp., 159 F, 2d 581 (7th Cir. 1947) (exclusable neglect) ;
——
Petition for Writ of Certiorart 9
Siebring v. Hansen, 346 F. 2d 474 (8th Cir. 1965) (con-
tempt).
Petitioner contended that since the consent decree did
not state one way Or another what evidence-marshalling
procedures were required or prohibited and did not state
one way or another what standards were to be used or not
used in determining whether petitioner committed ‘air
pollution’”’ within the meaning of the decree, principles
governing the interpretation of private agreements were
applicable and they required an examination of the cir-
cumstances surrounding the agreement. 3 Corbin on Con-
tracts, § 542 (1963). Petitioner argued that the October 4,
1968, letter of Mr. Howard Polin, President of petitioner
(see Exhibit No. 1 to the Government Brief before the
Court of Appeals), in which he suggested settlement, was
ample proof that he entered into the consent agreement
because he felt that he had been treated unfairly by HEW
and certain Selbyville residents who testified before HEW
and that, in order to avoid their prejudice, he suggested
a Delaware official be designated as decision maker under
the decree. Petitioner reasoned that under principles gov-
erning the interpretation of private agreements an intent
on the part of petitioner could be inferred which would
support an interpretation of the consent decree requiring
the Director (1) to rely on malodor evidence from sources
other than HEW personnel and other than Selbyville resi-
dents who testified against petitioner at the HEW confer-
ence and hearing; (2) to apply Delaware substantive law
in determining whether there was an ‘¢air pollution’’ viola-
' tion under the consent decree; and (3) to apply generally
accepted sampling techniques in marshalling and evaluating
malodor evidence. Because the Director failed to follow
these requirements, his air pollution determination was in-
valid, so petitioner contended.
10 Petition for Writ of Certiorart
In the alternative, petitioner claimed (1) that even if
the government had a different intent, since it had reason
to know of petitioner’s intent, it was bound by such intent;
and (2) that if the government had a different intent and
did not have reason to know of petitioner’s intent, it was
not bound by petitioner’s intent but the consent decree was
unenforceable for lack of ‘‘meeting of the minds.’’ When
there is a materially different understanding as to an essen-
tial term, an enforceable agreement is not formed. 1
Corbin on Contracts, § 107 (1963).
Rather than dealing with these questions of interpre-
tation under principles of contract law and resorting to
the Polin letter of October 4, 1968, or seeking other evidence
of the circumstances surrounding the consent agreement,
the District Court refused ‘‘to go behind the consent de-
cree’’ or consider evidence of petitioner’s intent in signing
the decree, as the following excerpt from pages 7-10 of
the September 24, 1969 hearing shows (emphasis supplied) :
Mr. Curran: Your Honor, may I submit the fol-
lowing comments for your consideration:
You, firstly, mentioned some question in your mind
as to why the early attachments—when I say ‘‘early,’’
I mean probably A, B, C, and perhaps even as far as
D—are made in my memorandum of law.
The purpose of the submission of these first few
attachments would be to guide the court regarding the
preliminary thinking of both the defendant and the
plaintiff in this case, your Honor.
More particularly, I think that Attachment A
{Polin letter of October 4, 1968 suggesting settlement]
from the president of the defendant corporation——
Tue Court: To his own lawyer.
Mr. Curran: (Continuing)—to his own lawyer, is
Petition for Writ of Certiorart 11
a statement of, admittedly, Your Honor, a self-serving
nature, to that extent, but I think that it also serves as
a statement of intention. °
TE Court: Oh, I do not think it does at all. Ihave
read that. I am not disposed to go behind the consent
decree.
Mr. Polin came in, and, in effect, what he told me
at the time it was signed was that they had done all
they could economically or practically, from an eco-
nomic standpoint, do to cure the condition.
It either cured it, or it did not. He didghot want
to go through with a suit at that time.
The government was prepared to try the case. He
said he would rather have this consent decree than a
trial. He got the consent decree, and he understood it,
and I am not interested in going behind it, because there
is no claim that there was fraud.
1 think it speaks for itself.
Mr. Curran: Yes, Your Honor.
Tue Court: And I think that my interpretation of
it has been heretofore extremely liberal in your favor.
Because the original affidavit of Mr. Wilburn literally
complied, but I felt that there ought to be something
more substantial before I took this serious action of
telling them they had to stop and go out of business.
Mr. Curran: Yes, sir.
Tue Court: But the government was ready to go
ahead; the court was ready to go ahead; and it was
your client who signed the consent decree, and who
agreed to the consent decree. I have always understood
that Mr. Porter [prior counsel for petitioner] was in
favor of it.
12
Petition for Writ of Certiorari
Mr. Curran: Your Honor, as I say, the fact, alone,
that we had to take a look at the consent decree, and
Your Honor had to review it and perhaps give both tiie
plaintiff and the defendant some guidance as to your
interpretation of that decree, brought up in my mind
the possibility that, if there was any question regarding
the intention of the defendant, surely this early docu-
mentation would make it ultimately clear.
TxHeE Court: He did not expect a hearing. He was
not entitled to an adversary hearing before the Dela-
ware commission, The affidavit is perfectly clear on
that.
What I said was that a man could not simply make
a finding without anything in support of it. And he
had to show that he had something substantial to sup-
port it.
Now, the government has offered a mass of mate-
rial to support the affidavit which Mr. Wilburn made as
to things that have happened since.
I want to know in what respect you feel the new
material is insufficient, or what reasons you have to
present to the court as to why the court should not sign
the final order.
Mr. Curran: I understand, Your Honor.
Tue Court: All right.
Mr. Curran: Your Honor, any comments I would
make, of course, would be only for guidance of the court,
my thinking of the case.
I hope you understand that.
THe Court: You are certainly entitled to state
whatever you think your client is entitled to. I have
just stated that I am not going behind the consent
decree.
BLEED THROUGH POOR COPY
Petition for Writ of Certiorart 13
Mr. Curran: Yes, sir.
Tue Court: All right.
The Court of Appeals acted similarly. It declared that
the consent decree was ‘‘plain in its terms.’’ Opinion of
Court of Appeals, p. 9. It reached this conclusion appar-
ently because the decree was not specific and because peti-
tioner did not ‘‘propose incorporation in the decree of any
protection it may have felt necessary.’’ Opinion of Court
of Appeals, p. 9. The Court of Appeals said: ‘‘ Nowhere
and at no time was it intimated that any finding of air
pollution was to be based upon unexpressed ‘understand-
ings’ with respect to the investigative [evidence-marshalling
and evaluation] procedures. Neither before the entry of
the consent decree, nor when the Judge held a hearing and
announced his interpretation of the decree for the guidance
of the parties did Bishop disclose the existence of any 3
‘understandings’ or reservations on its part.’’ Opinion of ‘
Court of Appeals, p. 9. Hinting some impropriety, the :
Court of Appeals concluded that the petitioner ‘‘cannot
now ask the court to revise the decree by inserting language
or to interpret it to embrace matters which, if present at all, 3
were lurking in the recesses of Bishop’s [petitioner’s] cor- 3
porate mind.’’ Opinion of Court of Appeals, p. 9.
The error in this reasoning is that the document cannot
be plain and unambiguous on its face with respect to the
intended ‘‘air pollution’’ standards and evidence-marshall-
ing and evaluation procedures when the document is totally
sjlent on these matters. The District Court’s own actions
and statements defy the conclusion that the consent decree
is plain. At the first hearing in March, 1969, the District
Court felt the need to inform the Director what the decree
required of him (66a-67a). The procedures and standards
to be followed were not ‘‘plain’’ to the Director and he had
to be ‘‘fully apprised of exactly what was expected of him
under the consent decree.’’ (66a).
:
§
3
14 Petition for Writ of Certiorari
Counsel for petitioner were retained subsequent to the
signing of the consent decree and perhaps, as a result, they
cannot fully appreciate the circumstances that led the parties
to sign the decree and the District Court judge to accept it.
However, in retrospect, it is clear that the decree should
not have been signed by either party nor accepted by the
court. This consent decree, let it be said for it needs to be
said, is a monument of ambiguity and a monument to poor
draftsmanship. Although its terms were in general pro-
posed by petitioner, the government drafted the language
of the decree. While petitioner must stand ready to accept
responsibility for the ambignity, the government must stand
ready to accept an equal if not greater share of the respon-
sibility. Indeed, private contract law so provides. 3 Corbin
on Contracts, §559, pp. 262-67; § 537, pp. 48-49; 4538, pp.
57-61; 64-70.
The other category of error in the reasoning of the
lower courts was that they assumed petitioner anticipated
that the Director would do what petitioner now claims he
should not have done. They reason from this assumption
that petitioner had ample opportunity to protect itself
and cannot not complain. This would be true if the assump-
tion were correct. However, it is erroneous: There is no
record support for it, and a hearing on the matter would
show that the assumption is erroneous.
Petitioner also urged the Court of Appeals to note that
there was recently discovered evidence tending to show
that the Director had been informed by the government
of his obligations under the decree after its signing and
that neither the Director nor the Delaware Water and
Air Resources Commission agreed to act as decision maker
under the consent decree. See letter dated October 21,
1969, from the Delaware Water and Air Resources Com-
mission informing petitioner that it had not been contacted
by the government prior to entry of the decree. Appellant
Rl CED THROUGH POOR COPY
w—
Petition for Writ of Certiorart 15
Brief before the Court of Appeals, Exhibit 3, p. 36. Peti-
tioner contended that if the Director was not informed of
his obligations prior to the consent agreement or if the
Director and the Commission had not consented to act as
decision maker under the decree, the air pollution deter-
mination of the Director was invalid. Petitioner reasoned
that the determination was invalid on several grounds; one,
the failure to inform and the lack of consent rendered the
decree uncertain as to an essential term (1 Corbin on Con-
tracts, 4 95, p. 394 (1963) and cases cited in footnote 2; 1
Corbin on Contracts, 4100, pp. 446-7 and cases cited in
footnote 55); (People v. William Kent Estate Co., 51 Cal.
Rptr. 215, 217 (1st Dist- Ct. App. Cal. 1966) (uncertain
meaning of the words ‘‘ordinary high-water mark’’ ren-
dered judgment ‘‘to uncertain to be enforced’’) ; and, two,
the decree implicitly barred any contact or consultation
between the federal government and the Director subse-
quent to the entry of the decree.
Petitioner requested the Court of Appeals for an op-
portunity to develop the facts on these points, but the court
ignored this request and by doing so again refused to apply
contract rules of interpretation to the consent agreement.
What the District Court and Court of Appeals has
done is tantamount to what this Court prohibited in Ward
Baking v. United States, 376 U.S. 327 (1964). In Ward,
the Court ruled that a District Court may not enter a ‘‘con-
sent’? judgment in a civil antitrust suit without the consent
of one of the parties. In disregarding the intent of peti-
tioner in interpreting the consent decree at issue, the Dis-
trict Court and the Court of Appeals have imposed on peti-
tioner terms to which it did not agree. Contrary to the
ruling in Ward, they are enforcing a consent judgment
without the consent of one of the parties.
The decisions of the lower courts in this matter are
also inconsistent with the Court’s decision in United States
16 Petition for Writ of Certiorart
v. Atlantic Refining Co., 360 U. S- 19 (1959). The Inter-
state Commerce Commission sought to enforce an interpre-
tation of a consent agreement which was contrary to the
intent of the parties. The Court ruled that the intent of the
parties could not be disregarded notwithstanding the fact
that the interpretation advanced by the Commission would
have tended to have fostered enforcement objectives more
than the interpretation based on the intent of the parties at
the time of the consent agreement.
What the District Court and Court of Appeals have
Effectively done is modify the terms of the consent decree.
This they cannot do. NLRB v. Ochoa Fertilizer Corp.,
368 U. S. 318 (1961); NZRB v. Brandman Iron Co., 368
U- S. 399 (1962) ; English v. McFarland, 285 F. 2d 267 (D.C.
Cir. 1960).
The Court of Appeals’ method of interpreting judi-
cially-approved consent agreements has broad implications
for the field of government regulation. It could tend to
discourage consent settlements of government regulation
claims and if applied retroactively as in the present case,
impair the stability of existing consent agreements. It
threatens to undermine a most important means of effective
and efficient administration and enforcement of govern-
ment regulation laws. An indication of the importance of
the Court of Appeals decision can be ascertained from the
fact that in calendar year 1969 one federal agency, the
Federal Trade Commission, accepted over 170 consent
agreements. All of these consent agreements and all prior
and future consent agreements by this or any other ad-
ministrative agency or court are within the reach of the
rulings below.
The implications of the lower court decisions for con-
sent agreements of administrative agencies such as the
Federal Trade Commission, National Labor Relations
Board and the Securities Exchange Commission may be
BLEED THROUGH POOR COPY
Petition for Writ of Certiorart 17
even more important. As applied to administrative orders,
the rulings below will mean that an administrative agency
will be able to place its own interpretation on a consent
agreement in accordance with its view of what is appro-
priate and in the public interest at the time of interpreta-
tion without regard for the intent of the private party at
the time of the signing of the agreement. In the case of
administrative orders, the agency is both the other party
and the initial adjudicator of any questions of compliance
with and interpretation of the decree. The judiciary is not
available to act as an independent arbiter of interpretation
disputes except upon judicial review.
The Supreme Court has on a number of occasions
granted certiorari in order to consider questions relating
to the interpretation, modification and enforcement of in-
junctive-type decrees or consent agreements of the federal
courts and federal independent regulatory agencies.
In Jantzen & Co. v. FTC, 386 U. S. 228 (1967), the
Court was presented with the question of the effect of the
Finality Act, Act of July 23, 1959, 73 Stat. 243, upon out-
standing Federal Trade Commission litigated orders and
consent agreements under Section 11 of the Clayton Act,
38 Stat. 734. The respondent claimed that the Finality Act
repealed the enforcement provision of Secticn 11 of the
Clayton Act, 15 U.S. C. § 21, and that orders entered into
prior to the enactment of the Fnality Act were not enforce-
able. The Court of appeals agreed with respondent. Be-
cause the appellate court ruling threatened to upset the
enforcement potency of almost 400 Federal Trade Commis-
sion orders, the Court granted certiorari.
The question posed in the present case is at least as
important to the legal system as the question in the Jant-
zen case. Like the Jantzen case, this matter involves the
effectiveness of injunctive-type orders. The decisions of
the District Court and Court of Appeals below threaten
ry
18 Petition for Writ of Certiorari
retroactively to change the implicit basis upon which pri-
vate parties have relied in entering into a consent settle-
ment and, in consequence, threaten to generate uncertainty,
confusion and a plethora of litigation or requests for ad-
visory opinions or declaratory judgments. The lower courts
method of interpreting consent agreements also threatens
to curtail the attractiveness of consent settlements to pri-
vate parties and, to this extent, threatens to destroy a use-
ful enforcement mechanism. Thus, the potential impact
of the rulings below both qualitatively and quantitatively
is certainly the equal of that in Jantzen.
Who could argue with the proposition that consent
agreements are as critical to antitrust enforcement as pri-
vate antitrust damage actions. The Court recently granted
certiorari in Perma Life Mufflers v. International Parts
Corp., 392 U. S. 134, 136 (1968), because ‘‘these rulings by
the Court of Appeals seemed to threaten the effectiveness
of the private action as a vital means for enforcing the
antitrust policy of the United States.’’ It follows that a
ruling threatening the effectiveness of consent agreements
as a means of antitrust enforcement also deserves con-
sideration by the Court. Since the rulings of the lower
courts in this case threaten the effectiveness of consent
agreements in more than the area of antitrust enforcement,
it also follows that the Court should grant this Petition for
Certiorari.
Underscoring the importance it attaches to injunctive-
type orders in the enforcement work of federal independent
regulatory agencies, the Court has granted certiorari to
consider the extent to which such agencies may enter cease
and desist orders prohibiting acts and practices other than
the precise unlawful act or practice found to have been
committed after evidentiary hearing, NLRB v. Express
Publishing Co., 312 U. 8. 426 (1941), the question whether
Petition for Writ of Certiorari 19
the Federal Trade Commission can prohibit entirely the
use of a deceptive name when the use of qualifying lan-
with the name will completely remove the deception,
Siegel Co. v. FTC, 327 U. 8. 608 (1946), the scope and
interpretation of Federal Trade Commission cease and
desist orders under Section 2(a) the Robinson-Patman Act,
49 Stat. 1526, 15 U. S. C. 413, Ruberroid v. FTC, 343 U. Ss.
470 (1952), and similar questions of scope and interpreta-
tion under Section 2(c) of the Robinson-Patman Act, Broch
é Co. v. FTC, 368 U. S. 360 (1962). The questions of inter-
pretation presented in these cases are surely of no greater
importance than the ones presented in this case. None of
those cases involved, as this case does, the applicability of
an entire set of principles in resolving disputes over inter-
pretation of judgments.
The Court has also recognized the importance of ques-
tions relating to the interpretation, modification and en-
forcement of injunctive judgments in appeal cases. Swift
é Co. v. United States, 276 U.S. 311 (1928) (consent decree
in antitrust suit); Aluminum Co. of America v. United
States, 302 U. S. 230 (1937); (consent decree in antitrust
suit) ; Chrysler Corp. v. United States, 316 U. 8S. 556 (1942)
(consent decree in antitrust case); Atlantic Refining Co.
v. ICC, 360 U. S. 19 (1959) (consent decree settling an
illegal transportation rebate suit under the Interstate Com-
merce Act and the Elkins Act); United States v. United
Shoe Machinery Corp., 391 U.S. 244 (1968) (consent decree
in antitrust suit).
II.
Whether thirty-one instances of malodor over a con-
secutive fourteen-week observation period constitutes as
a matter of law a violation of the federal Clean Air Act,
42 U.S. C. § 1857, et seq., without regard for seasonal varia-
—
20 Petition for Writ of Certiorari
tions in relevant meteorological conditions (e.g., wind
direction and speed, temperature, humidity, and precipita-
tion), the duraton of each malodor, the degree of offensive-
ness of each malodor, and the geographic pervasiveness of
each malodor? Petitioner requests that the Court grant
certiorari to consider this question of substantial impor-
tance.
The District Court ruled that ‘‘thirty-one reports of
malodorous conditions in the Selbyville, Delaware area,
an average of more than two occurrences per week’’ dur-
ing the period May 19, 1969 to August 24, 1969, constituted
an air pollution violation of the consent decree (160a).* The
District Court disregarded the duration of each reported
malodor, the degree of offensiveness of each reported malo-
dor, and the geographic pervasiveness of each malodor re-
ported. Relying solely on the frequency of reported malo-
dors, the court specifically ruled irrelevant all variations
in meteorological conditions. It stated that ‘‘what is re-
quired is a recurring phenomenon or series of instances;
certainly not every day or necessary every week, if the
weather conditions militate against it, but recurring with
more than isolated instances when the weather conditions
tend to carry any pollution from defendant’s [petitioner’s]
plant into Delaware.’’ (158a) (Emphasis added).
The Court of Appeals treated the District Court deter-
mination that petitioner had committed an air pollution
violation as a factual one and treated petitioner’s conten-
tions as ‘‘in substance an attack of the sufficiency of the
evidence upon which the finding of air pollution was based.”’
Opinion of Court of Appeals, p. 11. Noting that the Dis-
2. The consent decree provides for the closing of petitioner's
t upon a determination by the Director, Air Pollution Control
ivision, State of Delaware Water and Air Resources Commission,
that petitioner has committed “malodorous air pollution” in the
State of Delaware. The full text of the consent decree can be
found in the record (43a).
Petition for Writ of Certiorart 21
trict Court judge found that the government had adduced
“‘gufficient evidence to show that Bishop [petitioner] con-
tinues to pollute the air,’”’ the Court of Appeals ruled
that ‘‘certainly the factual finding, so carefully arrived at,
eannot be deemed clearly erroneous.’’ Opinion of Court
of Appeals, p. 11.
The Court of Appeals has mischaracterized the issue.
Petitioner does not and has not challenged the factual find-
ing of the Director and the District Court that during the
period May 19, 1969 to August 24, 1969, there were 31 re-
ports of malodors in the Selbyville, Delaware area. Peti-
tioner raises a question of law: Whether the Director and
the District Court in making the air pollution determina-
tion should have taken into account factors other than the
frequency of reported malodors.*
3. The Court of Appeals passing reference to a “horrible” and
“nauseating” odor (see opinion, ry 12) is misplaced. The source
of this characterization is the 1965 letter from a Delaware air pollu-
tion official to HEW. Opinion of Court of Appeals p. 3, n. 1. This
characterization, even if deemed to be true, is irrelevant to this case
for two reasons. First, it refers to a time prior to the date when
petitioner eliminated the use of most of the odorous materials in its
plant so as to abate the alleged air pollution in Selbyville. In this
connection, it should be noted that the Court of Appeals’ innuendos
that petitioner was recalcitrant and uncooperative are totally false.
This characterization has been sought to be placed upon petitioner
solely because it was unwilling to invest large sums in totally untried
air pollution control systems and devices. After it cut back on
odorous materials, petitioner invited government officials to come
to the plant and see the results for themselves. They did not come.
The second reason why the Court of Appeals’ reference to “horrible”
odors is inappropriate is this. The consent decree established an
evidentiary cut-off date of November 1, 1968.
Noting that the District Court judge at the first hearing “ex-
plained, with no caveat whatever from Bishop [petitioner], the type
and guantum of evidence he felt necessary” (Opinion of Court of
Appeals p. 11), the Court of Appeals implicitly charged petitioner
with a waiver of its objections to the District Court’s reliance on the
thirty-one reports of malodors. The record shows, however, that
the District Court’s explanation of the relevant kind of evidence
and relevant criteria was open-ended (67a).
22 Petition for Writ of Certiorart
As the Second Circuit Court of Appeals declared in
SEC v. Texas Gulf Sulphur Co., 401 F. 2d 833, 850 (2d Cir.
1968), ‘‘our disagreement with the district judge on the
issue does not, then, go to his findings of basic fact, as to
which the ‘clearly erroneous’ rule would apply, but to his
understanding of the legal standard applicable to them.”
And as it stated in In re Hygrade Envelope Corp., 366 F. 2d
584, 588-89 (2d Cir. 1966) : ‘‘To be sure, an appellate court
must respect findings of a trial judge as to what in fact
happened and in addition should give due weight to his
superior opportunity to acquire the true feel of the case.
But when the issue is his application of a legal standard to
facts undisputed or reasonably found, reversal is not
limited to results that are ‘clearly erroneous’; it is
enough that the appellate court should be convinced, as we
are here, that the result does not jibe with the applicable
rule of law.’’
The record tends to show and additional evidence
would clearly show that when such factors as seasonal vari-
ations in relevant meteorological conditions, the duration of
each malodor, the degree of offsensiveness of each odor,
and the geographic pervasiveness of each malodor are con-
sidered, the malodors reaching Selbyville area from peti-
tioner’s plant are de minimis. They do not interfere with
the enjoyment of life or property of the Selbyville area
residents.
Petitioner does not ask this Court to evaluate the rele-
vant evidence already in the record but asks the Court (1)
to rule that the above-mentioned factors should not have
been disregarded by the courts below; (2) to rule that
these factors must as a matter of law be taken into account
in determining whether an air pollution violation has been
committed; and (3) to remand the matter for the purpose
of taking whatever additional evidence the lower courts
—
Petition for Writ of Certiorart 23
deem appropriate under the legal standard announced by
this Court.
The Federal Clean Air Act prohibits but does not define
“air pollution”. This is the first case under the Act and
thus there are no case precedents to look to for guidance.
However, we are not without guidance. Indeed, the re-
cently enacted body of state air pollution legislation is
especially useful. All of the forty-four states which have
passed air pollution legislation define ‘‘air pollution’’ and
set out the factor that must be considered. This state legis-
lation is of compelling weight under the federal Clean Air
Act because Congress in enacting the Clean Air Act re-
frained from defining ‘‘air pollution’’ so that the states
could take the lead in this respect. The Clean Air Act con-
templated that primary enforcement responsibility would
rest with the states, the federal government providing
encouragement, guidance, funds, and HEW know-how. The
Act provides that the Secretary of HEW shall ‘‘encourage
the enactment of improved and, so far as practicable in the
light of varying conditions and needs, uniform State and
local laws relating to the prevention and control of air pol-
lution.’’ 42 U. S. C. § 1857a(a) (1969). HEW is required
to conduct research into the harmful characteristics of
various kinds of air pollutants and to issue its findings in
the form of what the Act describes as ‘‘criteria.’”, HEW
has done this for sulfur oxides and particulates. The
Clean Air Act requires that ‘‘State standards’’ be ‘‘con-
sistent with the air quality criteria’’ established by HEW.
42 U. S. C. § 1857d(b), § 1857d(c) (1969). In no event can
state standards be less demanding than any federal stand-
ards set up. 42 U.S. C. $1857d-1 (1969). This statutory
4. Air Quality Criteria for Particulate Matter, U. S. Department
of Health, Education and Welfare, AP-49. HEW has as yet issued
only fragmentary criteria on odor-carrying air contaminants indicat-
ing only that odors in sufficient quantities are potentially harmful. 4
Id. at 103.
24 Petition for Writ of Certtorari
scheme means that federal precedents will be of great
weight under state legislation and state precedents will
also be of great weight under the federal Clean Air Act,
What this means here is that, in the absence of a federal
definition and federal precedents, state standards are of
compelling influence. .
As of 1968, forty-four states had passed air pollution
legislation. Unlike the federal Clean Air Act, all of the
state legislation defines ‘‘air pollution.’’ Of particular im-
portance to this case is the fact that all of the state legisla-
tion defines ‘‘air pollution’’ in terms of quantity, quality,
duration, and injurious effects. See compilation of air pol-
lution control legislation in 9 Bost. Col. Ind. L. Rev. 712,
713-15 (1968).° The statute in Delaware, the state in which
the allegedly affected area is located, is representative.
‘‘Air pollution,’’ as defined in Delaware’s air pollution
act, Title 7, Section 6202, of the Delaware Code (emphasis
supplied), means ‘‘the presence in the outdoor atmosphere
of one or more air contaminants in sufficient quantities and
of such characteristics and duration’’ as to have one of
three categories of consequences: (1) injury to ‘‘human,
plant or animal life’’; (2) injury to ‘‘property’’; (3) ‘‘un-
reasonably interferes with the enjoyment of life or prop-
erty’’.6 This case involves the last category of effect, viz.,
an unreasonable interference with the enjoyment of life or
property by the residents of the Selbyville, Delaware area.
Section 6203(b) of Title 7 of the Delaware Code is
representative of similar provisions in the other state air
pollution acts. It requires the state agency charged with
5. California and Massachusetts are not exceptions, as it might
appear from footnote 7 on p. 713 of this law review comment. See
Cal. Health and Safety Code § 24243 (West 1967) ; Mass. Gen. Laws
Ann. ch. 11, §31C (Supp. 1969).
6. There are no reported cases under this statute or the other
state air pollution acts.
—
Petition for Writ of Certiorart 25
enforcement responsibility to ‘‘give due recognition to the
fact that the quantity or characteristics of air contaminants
or their duration of their presence in the atmosphere, which
may cause air pollution in one area of the state, may cause
less air pollution or not cause any pollution in another area
of the State.’’ (Emphasis supplied.) The same section, ac-
cordingly, requires the state air pollution control agency
“to take into consideration’’ ‘‘such factors among others
found by it to be proper and just, as existing physical con-
ditions, zoning classifications, topography and prevailing
wind directions and speeds.’’
The District Court and the Court of Appeals, in up-
holding the Director’s determination that petitioner com-
mitted an air pollution violation, erroneously relied on a
single factor: the frequency of malodors—thirty-one re-
ports of malodors over a fourteen-week period. They have
disregarded all other relevant factors.
As the Court of Appeals stated, ‘‘ pollution is a severe
and increasing problem of which the courts and other
branches of government have become acutely conscious.”’
Opinion of Court of Appeals, p. 11. This case represents
atest case for the government. It is one of first impression
in an increasingly important area of law. It is no doubt
only the first of many cases to come under federal and state
air pollution legislation. Unfortunately, the decision of
the courts below threaten to begin the development of this
embryonic body of law on an unsound footing and send it
off in the wrong direction. The rulings of the courts below
threaten to cause alarm, albeit unnecessary. Under a
standard of thirty-one malodors per fourteen-week period,
most of the plants in the country and a substantial number
of small businesses would be guilty of an air pollution
violation.
Petitioner asks this Court to grant certiorari in this
case to prevent stultification of the development of air
~
4 J
a
&
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k.
a
*
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4
4
26 Petition for Writ of Certiorart
pollution law. It does not ask the Court to set up precise
principles. That is not necessary in this case. Rather,
petitioner requests that this Court declare that factors
other than merely malodor frequency must be weighed in
determining an air pollution violation. The Court has
granted certiorari in similar circumstances. See, e.g,
Musicians Federation v. Wittstein, 379 U. S. 171, 175 (1964)
(‘‘the question being an important one of first impression
under the LMRDA’’—Labor-Management Reporting and
Disclosure Act, 73 Stat. 519, 522, 29 U. S. C. §411(a)(3)
(1958 ed., Supp. V).
Il.
Whether a series of unreasonable time limitations im-
posed upon petitioner by the federal District Court and
federal Circuit Court are such as to amount to a deprivation
of due process of law.
Throughout this entire procedure, petitioner’s counsel
has been under frantic time pressure apparently because
of the logical but incorrect theory by the federal District
Court and the Court of Appeals that appellant was at-
tempting to delay the procedure (62a). On February 19,
1969, counsel for petitioner was first consulted since prior
counsel had chosen to withdraw. Counsel had six days
to review the entire case ab initio, write a complex brief
and prepare for oral presentation. The government, hav-
ing sustained a loss at that stage, enjoyed a three month
period of inaction and a four month follow-up period to
casually gather evidence. The government filed its next
motion on September 12, 1969. This document was mis-
mailed and, therefore, not received by counsel until Sep-
tember 18, 1969. In desperation, petitioner’s counsel called
the Federal District Court judge requesting a few days to
Bprioeoen THIDHIICGH POOR COPY
Petition for Writ of Certiorart 27
prepare. This request was denied and the hearing was held
on September 24, 1969. In six days, counsel was forced
review complex government documentation of over 150
pages, write a brief, have it administratively prepared and
make ready for oral argument.
On November 10, 1969, the Federal District Court’s
order was entered. A conference was held in Judge Thom-
sen’s chambers requiring that a strict time schedule be
instituted regarding appeal. In accordance with prior
- procedure, the onus fell upon petitioner.
The transcript of trial was received by petitioner’s
counsel on or about November 26, 1969 and a designation
of that record was accomplished by December 2, 1969.
Thereafter, petitioner had 20 days during which to write
and administratively prepare a complete brief and ap-
pendix to be submitted to the Court of Appeals; for a reply
brief, it had 7 days.
Emphasis is placed upon administrative preparation
because petitioner’s counsel, John Paul Curran, Esquire,
is associated with a small law firm without the extensive
facilities available to a metropolitan office.
Then appellant was permitted four days to submit the
printed brief which became an impossibility.
These intolerable conditions continued. Once the
Court of Appeals affirmed the lower court, they wrote opin-
ion and entered an order which was misinterpreted by
counsel. The subject of 15 days was discussed by the
Court of Appeals as follows: ‘‘It is further ordered that
if appellant applies to the Supreme Court for certiorari
within 15 days from the filing of this opinion, the injunc-
tive order of the District Court will be stayed . . .”’
Petitioner’s counsel interpreted this to mean that they
were required to indicate their position-in a 15 day period.
On March 16, 1970 counsel called the Clerk of the Fourth
28 Petition for Writ of Certiorari
Circuit and informed him that the petitioner had chosen
to appeal. This was supported by a letter dated March
17, 1970. The transcript was forwarded. On March 20,
1970 at 4:15 P. M., petitioner’s counsel received a call from
government counsel indicating that the government believed
that the formal printed Petition for Writ of Certiorari had
to be filed within 15 days in order to stay the injunction.
At 4:45 P. M., petitioner’s counsel called the Clerk of the
Fourth Circuit but that Clerk did not know what the cor-
rect interpretation should be. As it was too late to call
Judge Sobeloff that day, a call was placed to him on Mon-
day morning, March 23, 1970 at 9:45 A. M. He verified the
government’s interpretation and although counsel re-
quested 30 days during which to file the Petition for Writ
of Certiorari, he was granted only seven days.
This conduct relating to petitioner must be compared
to the conduct as applied to the government. The consent
decree was signed on November 1, 1968. Three months
later, the government filed a motion. When this motion
was denied, the government did nothing until May of 1969
and then filed its next motion in September of 1969. This
six month delay belongs solely to the government.
Yet throughout this procedure, it is implicit that peti-
tioner is somehow being assumed to be the delaying party.
Due to this situation, petitioner’s counsel asserts to this
Honorable Court that it was a physical, mental and emo-
tional impossibility to competently represent their client
and provide that client with the complete legal services to
which it was entitled. Although no single time limitation
is, in itself, determinative, we are faced with a situation
where cumulative pressures have contributed to a denial
of due process of law. The petitioner relies upon the deci-
sion of Chandler v. Fretag, 348 U.S. 3, 9-10 (1954), to sup-
port the propositions stated herein.
Petition for Writ of Certiorart 29
CONCLUSION.
Because this case presents questions of substantial
importance and because the decisions of the Court of Ap-
peals and District Court are in conflict with the decisions
of this Court, it is submitted that the Petition should be
granted.
Respectfully submitted,
Rap J. SAVARESE,
246 Rosedale Avenue,
Strafford, Pennsylvania 19087
Joun Paut Curran,
6750 Market Street,
Upper Darby, Pennsylvania 1908
Attorneys for Petitioner.
March 30, 1970.
APPENDIX A.
UNITED STATES COURT OF APPEALS
For tHe Fourtu Cixcuit.
No. 14148.
UNITED STATES OF AMERICA,
Appellee,
v.
BISHOP PROCESSING COMPANY, a Bopy Corporate
OF THE STaTE oF MARYLAND,
Appellant.
AppeaL From tHe Unitep States District Court FoR THE
District or MaryLANnD, aT Bautimore. RoszeEu
C. Tuomsen, District JupcE.
(Argued February 4, 1970—Decided March 3, 1970.)
Before SoseLorr, BorEMan and Bryan, Circuit Judges.
John Paul Curran and Ralph J. Savarese (Lord, Ackerman
& Mulligan on brief) for Appellant, and Walter Kiechel,
Jr., Deputy Assistant Attorney General, (Shiro Kashiwa,
Assistant Attorney General, and Robert S. Lynch, Attor-
ney, Department of Justice, and Stephen H. Sachs, United
States Attorney, and J. Frederick Motz, Assistant United
States Attorney, on brief) for Appellee.
(31)
32 Appendix A
Sosevorr, Circuit Judge:
This appeal is the most recent chapter in a long series
of proceedings, in and out of court, stretching over more
than a decade. The states of Delaware and Maryland,
later joined by the federal government, have been en-
deavoring to bring relief to affected communities from al-
leged air pollution stemming from the appellant’s render-
ing plant.
From approximately 1959 to 1965 the two states en-
gaged in futile efforts to induce Bishop Processing Com-
pany, operator of the rendering and animal reduction plant
located near Bishop, Maryland, to abate the malodorous air
pollution which allegedly moves across the state line to
pollute the air of nearby Selbyville, Delaware. Finally in
1965, the United States Secretary of Health, Education and
Welfare received a request from the Delaware authorities
to ‘‘take the necessary action under P. L. 88-206, section
5 (the Clean Air Act, 42 U.S. C. § 1857, et seq.), to secure
the abatement of the air pollution problem.’’' In response
1. The letter was as follows:
The State of Delaware has been working with the State of
Maryland over the six (6) years in an attempt to correct
an interstate air sduaien problem which endangers the health
or welfare of the le in the Selbyville, Delaware, area. No
substantial a been made in spite of efforts on the
part of the Maryland State Department of Health and the Dela-
ware State Board of Health to resolve the problem. The of-
fender is the Bishop Processing Company located in Bishop,
Maryland. An obnoxious and nauseating odor emanates from
the plant of this Company in the process of rendering feathers,
offal, bone and grease. The citizens of Selbyville, Delaware,
describe this odor as a “horrible strench.”
The State Board of Health, Air Pollution Authority of
Delaware, with the concurrence of the Governor, respectfully
requests the Secretary of the Department of Health, Education
and Welfare take the necessary action under P. L. 88-206, sec-
tion 5, to secure abatement of this air pollution problem. Your
prompt attention in relation to this matter will be deeply ap-
preciated.
Appendia A 33
to this request the Secretary initiated hearing procedures
provided in the Act,
As recited in the District Judge’s opinion,’ the initial
step was a conference held in Selbyville on November 9
and 10, 1965. The parties attending the conference repre-
sented, as specified in the Act, the air pollution control
agencies of the states and municipalities concerned. The
Secretary forwarded to the participants a summary of the
conference discussions and recommendations, which called
upon Maryland to require Bishop to take certain remedial
action by September 1, 1966.
Since the recommended remedial action was not taken,
the Secretary instituted the next step envisioned in the Act,
by calling a public hearing which was held on May 17 and
18, 1967. At this hearing Bishop was represented by
counsel who extensively cross-examined witnesses and
otherwise fully participated. The hearing board forwarded
its findings and recommendations to the Secretary, who in
turn transmitted them to Bishop with the instruction to
abate the pollution not later than December 1, 1967 by in-
stalling adequate and effective pollution control systems.’
2. United States v. Bishop Processing Co., 287 F. Supp. 624
(D. C. Md. 1968). -
3 “NoTICcE
There are attached hereto, and made a part hereof, the Findings,
Conclusions, and Recommendations, dated May 19, 1967, of the
Hearing Board convened pursuant to the provisions of section
105(e)(1) of the Clean Air Act [42 U. S. C. 1857d(e)(1)] which
held a a hearing in the matter of the interstate air pollution
in the Selbyville, ware-Bishop, Maryland area.
“In accordance with section 105(e)(3) of the Clean Air Act
= U. S. C. 1857d(e) (3)] the Bishop Processing Company, Bishop,
faryland is hereby notified and directed to cease and desist from
discharging malodorous air pollutants and to abate such air pollu-
tion not later than December 1, 1967, by the installation, completion
and placing into operation adequate and effective control systems
and devices, as recommended by the Hearing Board.”
34 Appendix A
This step also proving fruitless, the Secretary, in the
exercise of the authority granted him in section 1857d;
filed a complaint on March 7, 1968 in the United States
District Court for Maryland seeking to enjoin Bishop from
discharging malodorous air pollutants. There followed
discussions between the parties and on October 4, 1968 the
appellant proposed settlement of the case, specifying the
terms he would accept. On November 1, 1968, the action
then pending was disposed of by settlement. A consent
decree was entered in which Bishop agreed, in the precise
terms it had suggested, to ‘‘cease all manufacturing and
processing”’ upon the ‘‘filing of an affidavit by the Director,
Air Pollution Control Division, State of Delaware Water
and Air Resources Commission, stating that the defendant
is discharging malodorous air pollution reaching the State
of Delaware * * *.’’®
4. See specifically, 42 U. S. C. § 1857d(g)(1) and § 1857d(h).
5. This cause having come on for pretrial conference, and the
defendant having consented to the following order, it is hereby
ordered, decreed and adjudged that:
1. The defendant, Bishop Processing Company, and its
Officers, agents, servants, employees, successors and assigns, and
any and all persons in active consort or participation with them
are permanently enjoined and restrained from discharging
malodorous air pollutants into the State of Delaware.
2. The Court retains jurisdiction of this suit for the pur-
pose of enforcing this decree in the following manner:
a) Upon the plaintiffs filing of an_affidavit by the
Director, Air Pollution Control Division, State of Delaware
Water and Air Resources Commission, stating that the de-
fendant is discharging malodorous air pollution reaching
the State of Delaware, the Court will forthwith order the
defendant to cease all manufacturing and processing opera-
tions in defendant’s rendering and animal reduction plant
located near Bishop, Maryland.
b) The defendant shall have no recourse or a
from the determination of the Director, Air Pollution Con-
trol Division, State of Delaware Water and Air Resources
Commission, tendered to the Court in the matter described
in subparagraph a) above.
Appendia A 35
The Director accordingly instituted a surveillance pro-
gram to determine to what extent, if any, the obnoxious
odors persisted and reached Delaware. Odors logs were
kept at the instance of the Director and he made personal
observations. On this basis the Director found that Bishop
had been reeurringly discharging malodorous air pollutants
which reached the State of Delaware since November 1,
1968. These findings and conclusions the Director em-
bodied in an affidavit.
Based upon this affidavit and pursuant to the consent
decree, the United States moved for an order directing
the defendant to cease operations. A hearing on this motion
was held on March 3 and 4, 1968, in which the District
Judge declared that the ‘‘Court would prefer to have more
evidence’’ that Bishop is engaging in air pollution, and
announced his interpretation of the consent decree ‘‘for
the guidance of * * * members of the staff who may be
participating in any further investigations.”’ In this way
the judge indicated to the parties the type of evidence he
would consider requisite for a showing of air pollution upon
which an order could be based.
On September 12, 1969, the United States filed a second
motion accompanied by affidavits in compliance with the
consent decree and the court prescribed evidentiary require-
ments. A.ier a further hearing, the court found the evi-
dence substantial and entered the order to cease operations.
The appeal ix from this order.
The appellant presses the contention that the District
Court erred in ruling that the Director performed his duties
in accordance with the consent decree. Bishop argues that
the decree was entered into with various ‘‘understandings’’
which contemplated certain procedures to be followed by
the Director in his investigation. Specifically, Bishop as-
serts its ‘‘understandings’’ that (1) the Director was not
to rely on citizen complaints or on testimony of representa-
a a Sg te a a
as Oe a a Ea
36 Appendia A
tives of the federal government in determining whether it
committed air pollution and, (2) that the Director’s finding
was to be based upon ‘‘generally accepted sampling tech-
niques.’’
Whatever merit this argument might have in other
circumstances, it must fail here. The consent decree is
plain in its terms. Nowhere and at no time was it intimated
that any finding of air pollution was to be based upon unex-
pressed ‘‘understandings’’ with respect to the investigative
procedures. Neither before the entry of the consent decree,
nor when the judge held a hearing and announced his in-
terpretation of the decree for the guidance of the parties
did Bishop disclose the existence of any ‘‘understandings”’
or reservations on its part.
Bishop had ample opportunity to propose incorpora-
tion in the decree of any protection it may have felt neces-
sary, and to object to procedures it deemed contrary to its
understanding of the decree’s terms. It cannot now ask
the court to revise the decree by inserting language or to
interpret it to embrace matters which, if present at all,
were lurking in the recesses of Bishop’s corporate mind.
Apparently as an afterthought, appellant now com-
plains that the government witnesses lacked objectivity.
It is contended that information supplied by employees of
the United States should not have been considered, for
the federal government is an adversary in this proceeding.
It was argued to us that appellant had faith in the Dela-
ware Director but not in the federal officials and that ap-
pellant’s expectation was that the Delaware official would
not rely upon federal representations made to him. There
are many examples of administrative agencies that act
upon the testimony of their investigators. It does not
derogate from the investigators’ objectivity that the agency
by whom they are employed has the regulatory function.
Of course the fact finder must consider every witness’ rela-
Appendix A 37
tionship to the parties and to the subject matter, but a
government employee is not disqualified as a witness by
reason of his employment.®
But the issue is a false one here, for the Director,
whom the appellant chose to determine the facts, did not
exceed the terms of his authority in the consent decree.
Like considerations apply to appellant’s belated challenge
to citizens’ complaints.
Bishop’s further contentions, variously repeated, are
in substance an attack on the sufficiency of the evidence
upon which the finding of air pollution was based. As
above stated, at the first hearing the District Judge ex-
plained, with no caveat whatever from Bishop, the type
and quantum of evidence he felt was necessary. After a
second hearing he found that the Government had complied
with his directions and adduced sufficient evidence to show
that Bishop continues to pollute the air. Certainly the
factual findings, so carefully arrived at, cannot be deemed
clearly erroneous.
Pollution is a severe and increasing problem of which
the courts and other branches of government have become
acutely conscious. The residents of the area in the neigh-
borhood of Bishop’s plant have the right to demand that
the air they breathe shall not be defiled by what witnesses
described as a ‘‘horrible’’ and ‘‘nauseating’’ stench. The
afflicted neighbors have striven long and in vain to vindi-
cate that right. Relief is due them now.
The appellant cannot complain that the decree came
suddenly, unexpectedly, or without awareness of the com-
6. In dealing with questions concerning the procedures to be
followed by administrative agencies, it has been consistently held
that rigid rules of evidence observed in courts of law may be relaxed
in administrative proceedings. Trade Commission v. Cement Insti-
tute, 333 U. S. 683, 705-06 (1948). Opp Cotton Mills v. Admin-
istrator, 312 U. S. 126, 755 (1941) ; Rosedale Coal Co. v. Director
of U. S. Bureau of Mines, 247 F. 2d 299 (4th Cir. 1957).
Sie.
38 Appendix A
plaints, nor that it was denied full opportunity to meet
them. In light of the entire history we perceive no inequity,
This court is not unmindful of the serious consequences
_ to appellant’s business from the District Court’s order. It
is, however, precisely the remedy which Bishop suggested
and agreed to in order to avoid a trial, and seems inescap-
able since it has over a long period failed to take effective
measures to solve the problem.
The order of the District Court is affirmed.
It is further ordered that if appellant applies to the
Supreme Court for certiorari within 15 days from the filing
of this opinion, the injunctive order of the District Court
will be further stayed until final disposition of the case in
the Supreme Court; otherwise the District Court’s injunc-
tion shall become operative.
Affirmed.
Appendia A 39
IN THE
UNITED STATES DISTRICT COURT
For THE District oF MARYLAND.
Crviu No. 19274.
UNITED STATES OF AMERICA
v.
BISHOP PROCESSING COMPANY, a Bopy CorporaTE
OF THE STATE OF MARYLAND
OPINION.
Filed: October 27, 1969.
Stephen H. Sachs, United States Attorney, J. Frederick
Motz, Assistant United States Attorney, of Baltimore,
Maryland, and Walter Kiechel, Jr., Attorney, Depart-
ment of Justice, of Washington, D. C., for plaintiff.
Arnold M. Weiner, of Baltimore, Maryland, and John Paul
Curran, of Philadelphia, Pennsylvania, for defendant.
TuomsEN, Chief Judge
After the defendant herein had failed to enjoin the
filing of this suit, see Bishop Processing Co. v. Gardner,
975 F. Supp. 780 (D. Md. 1967), the complaint herein was
filed on March 7, 1968. Defendant’s motion to dismiss the
complaint was denied, with a reported opinion, United
States v. Bishop Processing Co., 287 F. Supp. 624 (D. Md.
1968).
At a pretrial conference a stipulation was filed, signed
by the attorneys for the United States, by the attorneys for
BPE RI ERY LIN IS I OAS SE PREM RRR TE ENS ~
TERE RAR SO Gre A ane Te ay RULE eae GeO Me ae Re ee
i och
HY
s
40 Appendix A
the defendant, Bishop Processing Company, and by Harold
Polin, President of Bishop Processing Company, consent.
ing to the entry of the following Consent Decree:
‘“‘This cause having come on for pretrial confer.
ence, and the defendant having consented to the follow-
ing order, it is hereby ordered, decreed and adjudged
that:
‘*1. The defendant, Bishop Processing Company,
and its officers, agents, servants, employees, successors
and assigns, and any and all persons in active concert
or participation with them are permanently enjoined
and restrained from discharging malodorous air pol-
lutants into the State of Delaware.
‘*2. The Court retains jurisdiction of this suit for
the purpose of enforcing this decree in the following
manner:
‘‘a) Upon the plaintiff’s filing of an affidavit
with the Court by the Director, Air Pollution Con-
trol Division, State of Delaware Water and Air
Resources Commission, stating that the defendant
is discharging malodorous air pollution reaching
the State of Delaware, the Court will forthwith
order the defendant to cease all manufacturing
and processing operations in defendant’s render-
ing and animal reduction plant located near
Bishop, Maryland.
‘‘bh) The defendant shall have no recourse or
appeal from the determination of the Director, Air
Pollution Control Division, State of Delaware
Water and Air Resources Commission, tendered to
the Court in the matter described in subparagraph
(a) above.
November 1, 1968”’
_—
Appendix A 41
Before the Consent Decree was signed, the Court asked
Mr. Polin whether he had discussed the matter with other
Directors of the Company and whether he was authorized
to sign the stipulation on behalf of the Company, to both
of which questions he replied ‘‘Yes, sir’’.
On February 7, 1969, plaintiff filed a ‘‘Motion for
Order’? attaching two affidavits of James T, Wilburn,
Director of the Air Pollution Control Division of the Dela-
ware Water and Air Resources Commission, and praying
that the Court order the defendant, in accordance with the
Decree, to cease all manufacturing and processing opera-
tions in defendant’s rendering and animal reduction plant
located near Bishop, Maryland.
After a hearing on that motion, the Court made the
following statement:
‘Tt appears that Mr. Wilburn did not fully realize,
or was not fully apprised of, exactly what was expected
of him under the consent decree.
«The Court has no question about Mr. Wilburn’s
good faith.
‘The Court does feel that, in view of all the cir-
cumstances, the Court would prefer to have more evi-
dence in the case than we have now, before deciding the
case, in view of the fact that defendants are arguing
that there must be substantial evidence in the record
taken as a whole to support the decision.
“The Court is satisfied that the determination by
Mr. Wilburn as Director of the Air Pollution Control
Division did not require him to have an adversary
hearing. However confident the Court is in his good
faith, the Court is not prepared to rule at this time
whether there is not a minimum amount of evidence or
facts which must be used as the basis for his determina-
tion.
42 Appendia A
‘‘Therefore, I am making this interpretation of
the consent decree for the guidance of Mr. Wilburn,
Mr. Lawrence, and any other members of the staff
who may be participating in any further investigations,
‘‘The key words are whether defendant is dis-
charging malodorous air pollution reaching the State
of Delaware. The time period is after November 1,
1968.
‘What is required more than a single instance,
or one or two isolated instances, over a considerable
period of time.
‘‘Rather, what is required is a recurring phe-
nomenon or series of instances; certainly not every
day or necessarily every week, if the weather condi-
tions militate against it, but recurring with more than
isolated instances when the weather conditions tend
to carry any pollution from defendant’s plant into
Delaware.
‘‘The Director’s determination may be based upon
his own personal observation, or personal observation
by one or more members of his staff, or odor logs, or
other similar records. The sufficiency of the other
proof depends necessarily upon the number of per-
sons, the certainty of their recollection as to dates, and
other criteria.
‘‘The evidence which is already admitted will be
considered at the conclusion of the adjourned hearing,
and a further hearing may be held at any time that
counsel for the government, after consultation with Mr.
Wilburn, believes that sufficient evidence may be sub-
mitted, either by further testimony from him or a
further affidavit from him, supported by the evidence
I have suggested in the form of affidavits, written
records, reports, et cetera.
BLEED THROUGH POOR COPY
—
Appendia A 43
‘When such material is available, counsel for the
government may ask the Court to set the case for hear-
ing promptly.
“J will set it as fast I can set it, in fairness to
counsel for the defendants.”’
Thereafter, on September 12, 1969, the government
fled a second Motion for Order, accompanied by a detailed
affidavit of Hugh J. Menghi, staff meteorologist of the Air
Pollution Control Division of the Delaware Water and Air
Resources Commission, which was supported by various
records. No affidavit of the Director of the Division ac-
companied the motion.
Defendant filed a memorandum of law, with affidavits,
in opposition to plaintiff’s motion.
A hearing was held, in which the Court noted that
plaintiff’s motion was not supported by an affidavit of the
Director of the Air Pollution Control Division of the Dela-
ware Water and Air Resources Commission, as required by
the decree of November 1, 1968, and the Court’s memoran-
dum of March 4, 1969, quoted above.
Thereafter, plaintiff filed the following affidavit by
Norman E. Thomas, Acting Director of the Air Pollution
Control Division of the Delaware Water and Air Resources
Commission:
‘That based upon the facts and supporting infor-
mation contained in the affidavit of September 5, 1969, :
executed by Hugh J. Menghi, which affidavit was pre- :
pared and executed under my supervision, I state that
the defendant, Bishop Processing Company, is dis-
charging malodorous air pollution reaching the State ;
of Delaware.’’
pee RLY TRIE NLT RI TERY A IIE SSE I GO AME NSE DW LUELLA IE POI TIT OT TEN
i See ee * Y b Se ee *
RT
Defendant then filed a supplemental memorandum of
law with two additional affidavits, which, like the former
BILE OMAN RENEE ANY EEE
44 Appendix A
affidavits submitted by defendant, contradict the evidence
upon which the Acting Director relied.
The additional affidavit submitted by the plaintiff fully
satisfies the requirements of the Consent Decree and its
interpretation by this Court on March 4, 1969. The deter.
mination of the Acting Director quoted above is supported
by substantial evidence on the record considered as a whole,
Laws v. Celebrezze, 368 F. 2d 640 (4 Cir. 1966) ; O’Leary
v. Brown-Pacific-Mazon, 340 U. 8. 505 (1951). The Menghi
affidavit, referred to in the affidavit and determination of
the Acting Director, and made under his supervision, states
that from May 19, 1969 to August 24, 1969, there had been
thirty-one reports of malodorous conditions in the Selby-
ville, Delaware area, an average of more than two occur-
rences per week. Those reports, if accepted and believed
by the Acting Director, provided a substantial basis of
evidence from which he could reasonably infer that the
Bishop Processing Company is discharging malodorous air
pollution which is reaching the State of Delaware. The
Director was not required to hold an evidentiary hearing.
The Court will enter an order directing the defendant
to cease all manufacturing and processing operations in
defendant’s rendering and animal reduction plant located
near Bishop, Maryland. If counsel are unable to agree
upon the form and timing of the injunction, the Court will
settle those matters one week from the date this opinion is
filed.
RoszeL C, THomsen
Appendia A 45
IN THE
UNITED STATES DISTRICT COURT
For tue District or MaRYLAND.
Crviz No. 19274.
THE UNITED STATES OF AMERICA,
Plaintiff,
v.
BISHOP PROCESSING COMPANY, a Bopy Corporate
OF THE STATE OF MaRyYLAND,
Defendant.
ORDER.
This Court having retained jurisdiction of this suit
for the purpose of enforcing the Consent Decree entered
on November 1, 1968, and plaintiff having filed in accord-
ance with that Decree affidavits dated September 5, 1969,
and September 24, 1969, and supporting documents showing
that the defendant is discharging malodorous air pollution
reaching the State of Delaware, and the Court in its opin-
ion filed October 27, 1969, having held that these affidavits
fully satisfy the requirements of the Decree,
It is hereby Ordered
that the defendant, Bishop Processing Company,
cease all manufacturing and processing operations in de-
fendant’s rendering and animal reduction plant located
near Bishop, Maryland, on or before February 16, 1970.
Roszet C. THOMSEN,
Chief Judge, U. S. District Court.
Date: November 10, 1969
en CE SONNY Se eet
46 Appendia B
APPENDIX B.
Clean Air Act, 42 U. 8. C. § 1857, et seq.
§ 1857a. Cooperative activities—Interstate cooperation;
uniform State laws; State compacts.
(a) The Secretary shall encourage cooperative activi-
ties by the States and local governments for the prevention
and control of air pollution; encourage the enactment of
improved and, so far as practicable in the light of varying
conditions and needs, uniform State and local laws relating
to the prevention and control of air pollution; and encour-
age the making of agreements and compacts between States
for the prevention and control of air pollution.
§1857d. Air quality standards and abatement of air pol-
lution—Air pollution subject to abatement.
(a) The pollution of the air in any State or States
which endangers the health or welfare of any persons, shall
be subject to abatement as provided in this section.
Encouragement of municipal, State, and interstate action.
(b) Consistent with the policy declaration of this sub-
chapter, municipal, State, and interstate action to abate air
pollution shall be encouraged and shall not be displaced by
Federal enforcement action except as otherwise provided
by or pursuant to a court order under subsection (c), (h),
or (k) of this section.
State standards; letter of intent; boards for hearings on
standards; members, compensation, and expenses; vio-
lations ; jurisdiction.
(c) (1) If, after receiving any air quality criteria and
recommended control techniques issued pursuant to section
1857c—2 of this title, the Governor of a State, within ninety
Appendiz B 47
days of such receipt, files a letter of intent that such State
will within one hundred and eighty days, and from time to
time thereafter, adopt, after public hearings, ambient air
quality standards applicable to any designated air quality
control region or portions thereof within such State and
within one hundred and eighty days thereafter, and from
time to time as may be necessary, adopts a plan for the
implementation, maintenance, and enforcement of such
standards of air quality adopted, and if such standards and
plan are established in accordance with the letter of intent
and if the Secretary determines that such State standards
are consistent with the air quality criteria and recom-
mended control techniques issued pursuant to section
1857e—2 of this title; that the plan is consistent with the
purposes of this chapter insofar as it assures achieving
such standards of air quality within a reasonable time; and
that a means of enforcement by State action, including au-
thority comparable to that in subsection (k) of this section,
is provided, such State standards and plan shall be the air
quality standards applicable to such State. If the Secre-
tary determines that any revised State standards and plan
are consistent with the purposes of this chapter and this
subsection, such standards and plan shall be the air quality
standards applicable to such State.
§1857d—1. Standards to achieve higher level of air
quality.
Nothing in this subchapter shall prevent a State,
political subdivision, intermunicipal or interstate agency
from adopting standards and plans to implement an air
quality program which will achieve a higher leyel of am-
bient air quality than approved by the Secretary.
July 14, 1955, c. 360, Title I, § 19, as added Nov. 21, 1967,
Pub. L. 90—148, § 2, 81 Stat. 497.
48 Appendix B
Delaware Air Pollution Control Act, Del. Code Ann,, tit, 7,
§ 6200, et seq.
§ 6202. Definitions.
As used in this chapter, unless the context otherwise '
requires——
(a) ‘‘Air pollution’? means the presence in the out. _
door atmosphere of one or more air contaminants in suff- ©
cient quantities and of such characteristics and duration ©
as to be injurious to human, plant or animal life or to prop. |
erty, or which unreasonably interfere with the enjoyment —
of life and property within the jurisdiction of this State,
excluding all aspects of employer-employee relationships
as to health and safety hazards.
§ 6203. Powers.
(b) In exercising the powers conferred by this section,
the Commission shall give due recognition to the fact that
the quantity or characteristics of air contaminants or the
duration of their presence in the atmosphere, which may
cause air pollution in one area of the State, may cause less
air pollution or not cause any air pollution in another area
of the State and the Commission shall take into considera-
tion in this connection such factors, among others found by
it to be proper and just, as existing physical conditions,
zoning classifications, topography and prevailing wind
direction and speeds, and also the fact that a rule or regula-
tion and the degree of conformance therewith which may
be proper as to an essentially residential area of the State
may not be proper as to a highly developed industrial area
of the State. Added 55 Del. Laws, Ch. 442, § 1, eff. July 1,
1966.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.