Opposition Brief — Bishop Processing Co. v. United States

Iu the Supreme Court of the United States

OCTOBER TERM, 1969

No. 1378

BISHOP PROCESSING Co., A BODY CORPORATE OF THE

STATE OF MARYLAND, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A

31-38) is not yet reported. The opinion of the dis-

trict court (Pet. App. A 39-44) is not reported.

JURISDICTION

The judgment of the court of appeals was filed on

March 3, 1970. The petition for a writ of certiorari

(1)

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was filed on March 31, 1970. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether the district court properly implemented

a consent decree by ordering petitioner to cease op-

erations after finding substantial evidence that peti-

tioner was violating the decree by its continuing in-

terstate air pollution.

STATEMENT

The Bishop Processing Company of Bishop, Mary-

land, has operated a rendering and animal reduction

plant in the vicinity of the Maryland-Delaware bor-

der since 1955. Starting in 1959, the Maryland and

Delaware authorities spent some six years in nego-

tiations with the company, seeking abatement of the

nauseating odors emanating from its plant. After

these negotiations proved fruitless, the Chairman of

the Delaware Air Pollution Authority wrote to the

Secretary of Health, Education and Welfare, request-

ing him to take action as contemplated by the Ciean

Air Act’ “to secure the abatement of this air pollu-

tion problem.”

Pursuant to that request, the Secretary imple-

mented the first of the enforcement provisions of the

Clean Air Act by calling a conference of concerned

state and municipal agencies, 42 U.S.C. 1857d(d)

177 Stat. 392, as amended, 81 Stat. 485, 42 U.S.C. ( anig A

Supp. IV) 1857 et seq.

—,

(1), held in November 1965.’ Bishop was notified

of the conference’s recommendations, which called on

Maryland to require Bishop to take remedial action.

After much more than the six-month statutory pe-

riod passed without any action by Bishop on these

recommendations, the Secretary called a public hear-

ing, 42 U.S.C. 1857d(f) (1), held on May 17 and 18,

1967, at which Bishop was represented by counsel.

The hearing board found that Bishop was causing an

interstate pollution problem which could be cured by

changes in Bishop’s facilities, and recommended that

these changes be made. ‘The Secretary forwarded

these findings and recommendations to Bishop on :

May 25, 1967, together with a notice, pursuant to 42

U.S.C. 1857d(f) (3), to “cease and desist from dis-

charging malodorous air pollutants and to abate such

pollution” by installing corrective devices not later

than December 1, 1967. Bishop failed to take “action

reasonably calculated to secure abatement of the pol-

lution” and the Secretary, by letter of January 10,

1968, requested the Attorney General to file suit on

behalf of the United States to secure abatement of the

pollution. 42 U.S.C. 1857d(g) (1).

bie 3

?The administrative proceedings are described in greater

detail in the opinion of the district court denying Bishop’s

motion to dismiss the complaint in the present proceeding.

United States v. Bishop Processing Co., 287 F.Supp. 624, 627-

629 (D. Md.). The court had previously dismissed as pre-

mature a suit filed by Bishop during the administrative pro-

ceedings which raised many of the questions considered on

denial of the motion to dismiss. See Bishop Processing Co.

v. Gardner, 275 F.Supp. 780 (D. Md.).

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4

The United States filed suit on March 7, 1968.

Bishop moved to dismiss and, despite denial of the

motion, n. 2, supra, did not then or ever answer the

complaint. But after the case was set for pre-trial

conference, Howard Polin, the company president,

wrote to Bishop’s then counsel in this case, request-

ing counsel to contact government attorneys and

specifying the terms of a court order to which the

company would consent.* Counsel forwarded this let-

ter to government counsel, who responded by incor-

porating Mr. Polin’s terms into a stipulation that a

consent decree be entered permanently enjoining and

restraining Bishop “from discharging malodorous

air pollutants into the State of Delaware” (Pet. App.

A 40). The district court was to retain jurisdiction

for the purpose of enforcing the decree in the follow-

ing 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 pol-

lution 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 re-

duction plant located near Bishop, Maryland.

(b) The defendant shall have no recourse or ap-

peal from the determination of the Director,

Air Pollution Control Division, State of Dela-

* The full text of this letter, dated October 4, 1968, made

part of the record in the district court and on appeal, is

reproduced as Appendix 1 to this brief.

-_

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ware Water and Air Resources Commission,

tendered to the Court in the matter described

in subparagraph (a) above.

The executed stipulation was filed and the consent de-

cree entered on November 1, 1968.

Following the express terms of the consent decree,

the United States subsequently filed a motion for an

order to cease operations, supported by two affidavits

affirming Bishop’s continued interstate air pollution.

At the close of a hearing on this motion on March 4,

1969, the district court decided to reserve ruling until

further evidence could be submitted concerning Bish-

op’s violation of the consent decree. On September

12, 1969, the United States filed a second motion,

accompanied by a detailed affidavit by a meteorologist

and supporting exhibits, showing numerous further

incidents of pollution. The United States also filed

an affidavit by the Acting Director of the Air Pollu-

tion Control Division of the Delaware Water and Air

Resources Commission, stating in the terms required

in the consent decree that Bishop was continuing to

discharge malodorous air pollution reaching the

State of Delaware. After a hearing, the district court

filed its opinion, finding substantial evidence on

which the Acting Director’s affidavit could be ground-

ed. On November 10, 1969, the court entered an or-

der, pursuant to the consent decree, that Bishop

“cease all manufacturing and processing operations”

(Pet. App. A 45). That order, stayed pending final

outcome of the controversy, was affirmed by the court

of appeals.

6

ARGUMENT

Consistent with the provision of Rule 52(a),

F.R.Civ.P., that “Findings of fact shall not be set

aside unless clearly erroneous * * *,” the court of

appeals held that the district court’s finding—that

the evidence of continued interstate air pollution was

sufficient to support the Acting Director’s affidavit—

was not clearly erroneous. This holding is entirely

in accord with this Court’s view that the findings of

a trial court in a civil action should not be disturbed

where the appellate court is not definitely and firmly

convinced, on the entire record, “that a mistake has

been committed.” Zenith Corp. v. Hazeltine, 395

U.S. 100, 123; United States v. Gypsum Co., 333 U.S.

364, 365. Quite to the contrary, here the court of

appeals was convinced that the district court’s find-

ings were correct.

Petitioner brushes aside the holding of the court of

appeals in asking this Court to consider several ques-

tions not properly presented by the facts of this case.

Petitioner contends that certain “understandings”

existed at the time the consent decree was entered,

the application of which would exclude precisely the

evidence submitted to the district court showing peti-

tioner’s violation of the consent decree by continued

interstate air pollution.* The court below properly

rejected such contention (Pet. App. A, p. 36):

* Attached as Appendix 2 is Judge Thomsen’s certification,

made part of the record in the district court on appeal, that

no such “understandings” were communicated to the court

at any time before the consent decree was entered or at the

7

Whatever merit this argument might have in

other circumstances, it must fail here. The con-

sent 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 unexpressed

“understandings” with respect to the investiga-

tive procedures. Neither before the entry of the

consent decree, nor when the judge held a hear-

ing and announced his interpretation of the de-

cree 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 in-

corporation in the decree of any protection it

may have felt necessary, and to object to pro-

cedures 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.

Petitioner’s attack on the sufficiency of the evidence

ignores the plain language of the consent decree. The

consent decree specifically contemplated the filing by

the Acting Director of an affidavit stating that peti-

tioner was continuing to discharge pollutants into the

air reaching the State of Delaware. The district

court interpreted| as, the consent decree}requiring an

evidentiary showing of a continuing pollution prob-

lem emanating from the plant. It found that that

hearing of November 1, 1968, during which the court in-

quired of the defendant of his understanding of the terms of

the consent decree prior to its entry.

8

showing had been made and that the evidence sub-

mitted supported the affidavit. Nothing more was

required.’ Petitioner’s third contention (Pet. 2, 28),

that “cumulative pressures [on counsel] have con-

tributed to a denial of due process of law,” is equally

lacking in merit. The record reflects no more “pres-

sure” on petitioner’s counsel than on respondent’s

counsel. Petitioner’s dilatory tactics contributed sub-

stantially to the long delays encountered in bringing

these proceedings under the Clean Air Act to ulti-

mate resolution. It cannot now complain that the

courts’ waning patience with these delays was un-

warranted.

In all events, the district court’s implementation of

the consent decree is clearly correct and does not pre-

sent a question requiring this Court’s review. The

decisions below do not threaten the continued use of

consent decrees in judicial proceedings, contrary to

petitioner’s contention, nor do they conflict with this

Court’s interpretation of the “clearly erroneous” test

of Fed.R.Civ.P. 52(a).

5 Petitioner’s suggestion, that the failure of the courts below

to apply Delaware law threatens the dev. s»pment of the law

in this field, is indeed curious. It was the inability of the

Delaware authorities to obtain relief under state law that

prompted the request for federal proceedings under the

Clean Air Act, resulting in this suit.

F

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:

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CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be denied.

Respectfully submitted.

ERWIN N. GRISWOLD,

Solicitor General.

SHIRO KASHIWA,

Assistant Attorney General.

WALTER KIECHEL, JR.,

Deputy Assistant Attorney General.

RoBERT S. LYNCH,

Attorney.

May 1970.

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PER APM RR AS NS ae UR AR ERETI Bye RY he!

VAS Rete

10

APPENDIX 1

October 4, 1968

W. Edgar Porter, Esquire

132 E. Main Street

Salisbury, Maryland

Dear Mr. Porter:

I have given serious thoughts to the discussion we

had yesterday regarding Pre-Trial Order No. 1 writ-

ten by Mr. Kiechel, and your explanation of its con-

tents to me. I have read and re-read the copy you

gave me, and it seems very unfair to us.

You know and probably Mr. Kiechel knows that

I would like to settle this matter. However, to be

penalized by so doing is hard to swallow.

If I am correct, Mr. Kiechel, is willing to have a

conference. You also told me that Mr. Kiechel, by

telephone, has said that the government would not

consent to anything that was not based upon the

recommendations and findings and conclusions that

the Board made following its hearing in our case,

and which he has spelled out in his suggested Pre-

Trial Order No. 1, that the government will insist

that the Court find the violations that order states.

There are many things fallacious about the find-

ings and conclusions. You may know or recall that

H.E.W. sent advance men into the Delaware area

before the hearings were held, to prepare the scene

and tingle the atmosphere, to give advise and en-

couragement to would-be witnesses, eliminate poor

ones (from their point of view) and in general to

prepare for a successful hearing. A devilish situation

was made by encouraging and suggesting exaggera-

tions.

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11

Among others, Mr. William H. Megonegel led the

television camera crew, to nationally publicize the

hearings, and a Mr. Boercher was special liaison to

see that everything was carried out as prearranged.

Also, you may recall the report of H.E.W. dealing

with findings and conclusions was distributed on the

second or third day of the meeting which only shows

that this report was gotten up and printed prior to

the meeting. The only conclusion I can draw is that

the hearing was only “window dressing” and ac-

tually served no purpose. On the matter of recom-

mendations the act states “giving due consideration

to the practicability of complying with such stand-

ards as may be applicable and to the physical and

economic feasibility.”

Conditions relating to finances and the total lack

of labor (in our area) has dictated to us a policy

of prudence and conservatism. In light of this we

have chosen, more realistically, have been made to

choose,—a way in which no malodorous odors would

go into Delaware. This has been accomplished by

drastically reducing the designated odorous materials

that previously were used by us.

However, I confess that I would like to settle this

case, so that the time and money could be better used,

and allow us to go about our daily business, which

is difficult enough to run, and get relief from the

worry and uncertainties that this case carries.

I would therefore agree to consent to a Court order

forbidding us from causing any malodorous odors in

the State of Delaware, and further, to fortify this

order by agreeing that the Governor of Delaware or

someone he designates be the sole authority under

this agreement, with no recourse or appeal by us

12

from his decision and findings, in the event there is

another charge we are violating.

Please submit this proposal to Mr. Kiechel prompt-

ly, so that you and he can put it in its proper lan-

guage. If you and he agree upon a conference, |

would want you to represent me therein.

Yours,

BISHOP PROCESSING COMPANY

By: /s/ Howard Polin

HOWARD POLIN, President

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APPENDIX 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil No. 19274

[Received Jan. 13, 5:00 p.m. ’70,

Clerk, U. S. District Court, District of Maryland.]

THE UNITED STATES OF AMERICA, PLAINTIFF

Vv.

BISHOP PROCESSING COMPANY, a body corporate

of the State of Maryland, DEFENDANT

STATEMENT FOR THE RECORD

Bishop Processing Company has appealed (No.

14,148) from an order entered by this Court on

November 10, 1969. In its appellant’s brief, the fol-

lowing allegation appears (App. Br., p. 3):

On November 1, 1968 the complaint was set-

tled by a Consent Decree pursuant to which ap-

pellant agreed to close his plant if the Director

F of the Air Pollution Control Division, State of

Delaware Water and Air Resources Commission

determined that appellant had committed “mal-

odorous air pollution” in the State of Delaware

1 (483A). Appellant agreed to the compromise and

r the risk of closing its plant with the under-

; standing (1) that the Director of the Air Pollu-

s tion Control Division, State of Delaware Water

and Air Resources Commission wowld follow the

procedures and standards required by the Dela-

ware air pollution act Delaware Code Title 7,

§ 6201 et seg. and the regulations issued by the

14

Water and Air Resources Commission; and (2)

that the Director would specifically not rely on —

citizen complainants or representatives of the

adversary, the federal government. [Emphasis —

added. ]

The underlined recitation of “understandings” were —

not communicated to this Court by either defendant

or plaintiff at any time before the consent decree |

was entered or at the hearing of November 1, 1968,

during which this Court inquired of the defendant

of his understanding of the terms of the consent de |

cree, prior to its entry.

The Clerk is directed to docket this statement as

part of the record in this case and forward it to the

Clerk of the U. S. Court of Appeals for the Fourth

Circuit, for inclusion in the record on appeal, pur-

suant to Rule 10(e), F.R.App.P.

/s/ Roszel C. Thomsen

ROSZEL C. THOMSEN

Chief Judge,

U. S. District Court

WOU. S. GOVERNMENT PRINTING OFFICE; 1970 363882 668