Reply Brief — Bishop Processing Co. v. United States

TABLE OF CITATIONS.

Clean Air Act, 42 U. S. C. § 1857, et seq. .............0005-

3 Corbin on Contracts (1963) :

ME SRuehaseeceneseeersccdobvecdoccssocccescesors

Federal Rules of Civil Procedure, Rule 52(a) .............

Md. Stat. Ann., art. 43, §§ 690, 698( 1967) ...............

United States v. Atlantic Refining Co., 360 U. S. 19 (1959) ..

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IN THE

Supreme Court of the United States

Octoser Term, 1969.

BISHOP PROCESSING CO., a Bopy Corporate or

THE State or MaRyLann,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

Ox Perrtrion For a Writ or CERTIORARI TO THE UNITED

Srates Court oF APPEALS FOR THE FourtH Crecuit.

BRIEF FOR PETITIONER IN REPLY.

In its Petition for Writ of Certiorari, the petitioner

presented the following questions of substantial impor-

tance :

I. Whether the legal principles governing the inter-

pretation of agreements between private parties apply

to court-approved consent agreements? (Petition for Writ

of Certiorari, pp. 5-19).

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,

42U.8. C. § 1857, et seq., without regard for seasonal vari-

ations in relevant meteorological conditions (e.g., wind

direction and speed, temperature, humidity, and precipita-

2 Brief for Petitioner in Reply

tion), the duration of each malodor, the degree of offensive.

ness of each malodor, and the geographic pervasiveness of

each malodor? (Petition for Writ of Certiorari, pp. 19-26),

III. Whether a series of unreasonable time limitations

imposed upon petitioner by the federal district court and

federal Circuit Court are such as to amount to a depriva.

tion of due process of law? (Petition for Writ of Cer.

tiorari, pp. 26-28).

The respondent does not contest that these questions

are of substantial importance and that, in consequence, they

warrant review by this Court. Respondent’s position seems

to be that these questions are not presented by the facts,

With respect to the first question, respondent takes the

same erroneous position of the district court and court of

appeals, viz., petitioner’s interpretation of the consent

decree must not prevail because (1) it is inconsistent with

the ‘‘plain’’ terms of the consent decree and (2) petitioner

had ‘‘ample opportunity’’ to include in the decree provi-

sions it felt necessary.

There is no way in which the consent decree can

rationally be characterized as ‘‘plain’’ or ‘‘unambiguous.”’

The decree is totally silent on the meaning of the crucial

words ‘‘malodorous air pollution.’ The courts below have

ruled that whatever odor evidence the Director of the Air

Pollution Control Division, Delaware Water and Air Re-

sources Commission, finds sufficient is sufficient as a matter

of law as long as he says it is sufficient. Seasonal varia-

tions in meteorological conditions—wind direction and

speed, temperature, humidity, and precipitation—are

irrelevant under the decree, although the decree does not

say so. The duration of each malodor is irrelevant, al-

though the decree does not say so. The degree of offensive-

ness of each malodor is irrelevant, although the decree does

Brief for Petitioner in Reply 3

not say so. The geographic pervasiveness of each malodor

is irrelevant, although the decree does not say so.

The decree is also totally silent on the procedures to

be used by the Director in marshalling and evaluating

evidence of malodors. Although the decree does not say

so, the Director, according to the courts below, had unlimited

discretion and was free to be arbitrary in the gathering

and analysis of malodor evidence.

The district court effectively prejudged the questions

relating to the meaning of the decree. It decided that the

decree which it had already accepted and approved had

to be ‘‘plain’’ and it refused even to consider evidence to

determine whether the decree was plain. This in and of

itself is contrary to the principles governing the interpreta-

tin of private agreements, 3 Corbin on Contracts, § 542

(1963). Furthermore, the district court’s own actions

belie its characterization of the decree as ‘‘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-77a). 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).

The respondent continues to rely on the district court’s

certification that petitioner’s interpretation of the decree

was hever communicated to the court. It reasons that since

petitioner had ample opportunity to incorporate its inter-

pretation into the decree, petitioner is now estopped. How-

ever, this does not follow. Petitioner’s failure to come

forward with its interpretation of the decree prior to its

acceptance by the court is in no way inconsistent with its

coming forward subsequent to the entry of the decree. The

error in the reasoning of the lower courts and respondent

is that they assume petitioner anticipated that the Director

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4 Brief for Petitioner in Reply

would do what petitioner now claims he should not have

done under the decree. Not only did petitioner not antici.

pate the subsequent action by the Director, but it also had

no reason to anticipate such action.

Petitioner assumed that there had been a meeting of

the minds as a result of the letter of Mr. Howard Polin,

President of petitioner, suggesting settlement. Brief for

the United States In Opposition, Appendix 1. This letter

showed that petitioner was willing to enter into a consent

agreement to avoid a legal determination based on the kind

of emotional and exaggerated testimony that resulted from

the public odor hearings sponsored by HEW. Petitioner

assumed that the letter suggesting settlement made it clear

that the Director was (1) to rely on malodor evidence from

sources other than HEW personnel and other than Selby.

ville residents who testified against petitioner at the HEW

conference and hearing; and (2) to apply Delaware sub-

stantive law in determining whether there was an “air

pollution’’ violation under the decree.

Respondent suggests that the procedural limitations

petitioner assumed the Director would follow are so unusual

as to be incredible. However, these procedural limitations

are far from extraordinary in air pollution proceedings.

Indeed, the State of Maryland, the state in which peti-

tioner’s plant is located, recently enacted air pollution

legislation containing precisely the limitations petitioner

had in mind. Md. Stat. Ann., art. 43, §§ 690, 698 (1967).

In retrospect it may be said that petitioner made a

mistake in not insisting on a more specific decree. However,

this kind of mistake is not uncommon. It has given rise to

thousands of disputes relative to the interpretation of

private agreements and has also given rise to a body of

principles governing the interpretation of agreements.

Under the reasoning of the lower courts and respondent,

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Brief for Petitioner in Reply 5

there would never be a legitimate private contract dispute

involving interpretation and meaning. Nor would a private

party’s interpretation of a consent decree ever prevail over

the government’s interpretation. All of the responsibility

for ambiguities in a decree are assumed by the private

party even where, as here, the government is the drafter

of its language. Such a view is of course contrary to

private contract law. 3 Corbin on Contracts, § 559, pp.

962-67 ; § 537, pp. 48-49; § 538, pp. 57-61; 64-70.

Respondent’s position is that in interpreting consent

agreements the government’s view of the requirements of

the public interest must prevail over the intent of the

parties. This method of interpreting consent agreements is

in direct conflict with this Court’s ruling in United States

v. Atlantic Refining Co., 360 U. S. 19 (1959). If this method

of interpretation is permitted to stand, it will tend to dis-

courage consent settlements of government regulation

claims and thereby tend to destroy a crucial means of

effective and efficient administration and enforcement of

government regulation laws. For a more detailed dis-

cussion, see Petition for Writ of Certiorari, pp. 15-19.

With respect to the second question, respondent takes

the position that the Director’s air pollution determination

is a finding of fact which is not clearly erroneous and there-

fore should not be ‘‘disturbed.’’ This is a familiar strategy

designed to defeat appellate review. If you win at the

trial level, on appeal characterize the issue as one of fact

because of the limited scope of review of findings of fact.

Respondent’s characterization of the issue, just as the

eoart of appeals’ characterization, is patently wrong. Peti-

tioner does not and has not challenged the factual finding

of the Director and the district court that during the period

May 19, 1969 to August 24, 1969, there were 31 reports of

malodors in the Selbyville, Delaware area. Petitioner

Spare Hemme precy

6 Brief for Petitioner in Reply

raises a question of law: Whether the Director and the

district court in making the air pollution determinatiop

should have taken into account factors other than the fre.

quency of reported malodors. In its Petition for Writ of

Certiorari, petitioner pointed out that this case represents

a test case for the government; that it is one of first im.

pression in an increasingly important area of law; that the

decision of the courts below threaten to begin the develop.

ment of this new area of the law on an unsound basis; and

that under the legal standards adopted by the courts below

most of the plants in the country would be guilty of an air

pollution violation. For a more detailed discussion of these

points, see Petition for Writ of Certiorari, pp. 19-26.

The Court of Appeals’ misapplication of Rule 52(a) of

the Federal Rules of Civil Procedure in itself raises a sub-

stantial question appropriate for this Court’s review. The

Court of Appeals’ interpretation of the clearly erroneous

rule places it in direct conflict with the interpretation of

other Circuits. See Petition for Writ of Certiorari, p. 22.

Respondent has conveniently ignored the points made

by petitioner. Instead of addressing itself to the merits,

it has chosen to attempt to persuade the Court that peti-

tioner has in bad faith endeavored to delay the only just

outcome, i.e., the closing of petitioner’s plant. The ad-

mission implicit in this choice of advocacy speaks for itself.

On the matter of delay, the petitioner has acted promptly

throughout these proceedings. Of course, any time a party

is not willing to surrender and exhausts the legal remedies

available, a final decision may take years as it has here.

Respondent has sought to impose on petitioner costly

and untried odor control systems and devices. Petitioner

has resisted because the costs were prohibitive, and there

was no guarantee of success. Petitioner, however, took

other steps to control malodors. It eliminated two-thirds

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SIP

Brief for Petitioner in Reply 7

of the odor-producing materials. This was effective in

eliminating malodorous air pollution. But, apparently be-

cause this is a test case under the Clean Air Act, the govern-

ment has effectively ignored this and pressed for a closing

of petitioner’s plant.

Respectfully submitted,

Raupu J. SAvAREsE,

Joun Pau Curran,

Attorneys for Petitioner.