Petition for Writ of Certiorari — Kawasaki Motors Corp. v. Train

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IN THE

Supreme Court of the CQnited States

OcTOBER TERM. 1974

No.

KAWASAKI MOTORS CORPORATION,

Petitioner,

VS.

RUSSELL TRAIN, ADMINISTRATOR OF THE ENVIRON-

MENTAL PROTECTION AGENCY: ENVIRONMENTAL

PROTECTION AGENCY,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT.

GEORGE E. BULLWINKEL,

DONALD J. ERICKSON, Jr..

PricE, CUSHMAN, KECK, MAHIN

& CATE,

134 South LaSalle Street.

Chicago, Illinois 60603,

Counsel for Petitioner.

Gurchorp- Warren Printing Company, Chicago @ 346-1717

INDEX.

PAGE

L Tike Opinion Below . ww cece nase cccvecnes l

Se Eee rr Se re eer re ee eee 2

III. Question Presented for Review ................ 2

IV. Constitutional and Statutory Provisions Involved .. . 3

7 NE GE WD SAID ik vibe cceccreeeneecveseus 3

VI. Reasons Why the Writ Should be Granted ........ 5

A. The Availability of Relief Under § 307(b)(1)

of the Act Is an Important Question of Federal

Law Which Must Be Settled by This Court .... 5

B. By a One-Sentence Summary Dismissal, the Court

of Appeals Has Ignored an Undisputed Allega-

tion of Jurisdictional Facts, Which Is Such a De-

parture from the Accepted and Usual Course

of Judicial Proceediugs as *o Call for This Court

SPRITE MAMIE 5 Gc acndnacencsuss sare 7

hE CE CWALSAGS Sake eked Shaan beK OG BR NSS 9

APPENDICES.

APPENDIX A. Kawasaki's Petition for Review ........ Al

APPENDIX B. The Administrator's Motion to Dismiss .. A3

APPENDIX C. The Administrator's Memorandum in Sup-

port of Motion to Dismiss ............ A4

APPENDIX D. Kawasaki's Brief in Opposition to the Ad-

ministrator’s Motion to Dismiss ........ A8

Exhibit A. Affidavit of Roger Hagie ........... Al7

crhibit B. Affidavit of I. Tamuro .............. A21

Exhibit C. Affidavit of John E. Burns .......... A24

APPENDIX E. Order Dismissing Petition for Review .... A26

TABLE OF AUTHORITIES.

Commercial Standard Air Co. v. Liberty Plan Co., 283

Tae Oe CR, BOUND: occ ccwa yee sohekicuckas

Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941) ....

Rodale Press, Inc. v. FTC, 407 F.2d 1252 (D.C. Cir.

gc, METI ETE TEE PCO ET ECE Tepe

S.E.C. v. Chenery Corp., 318 U.S. 80 (1943) ........

S. S. Silberblatt, Inc. v. United States ex rel. Lambert

Co., 353 F.2d 545 (Sth Cir. 1965) ..............

Texas v. EPA, 499 F.2d 289, 6 ERC 1897 (Sth Cir. 1974)

United States v. Forness, 125 F.2d 928, cert. den. 316

We GOS (Ome Cie. PORRD noon vv voce cckn.

CONSTITUTION.

ae Cs SU isn ds eee ool ce eke

Aan Ww A A NH CO CO WN oo

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974.

No.

KAWASAKI MOTORS CORPORATION,

Petitioner,

VS.

RUSSELL TRAIN. ADMINISTRATOR OF THE ENVIRON-

MENTAL PROTECTION AGENCY; ENVIRONMENTAL

PROTECTION AGENCY,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT.

Petitioner Kawasaki Motors Corporation (hereinafter Kawa-

saki) prays that a writ of certiorari issue to review the judgment

of the United States Court of Appeals for the Ninth Circuit in

summarily dismissing a direct appeal pursuant to Section 307(b)

(1) of the Clean Air Act (42 U.S.C. § 1857 ef seq.) of an

administrative order by the Administrator of the Environmental

Protection Agency (hereinafter Administrator and EPA, re-

spectively).

1.

THE OPINION BELOW.

The unreported opinion of the Court of Appeals is reprinted

and appended hereto as Appendix E.

to

II.

JURISDICTION.

The Court of Appeals entered its judgment and order of dis-

missal on August 9, 1974.. No rehearing or extension of time in

which to file this petition was granted or requested. This peti-

tion is timely filed pursuamt to 28 U.S.C. Section 210! (c). This

Court has jurisdiction to review the decision of the Court of

Appeals by writ of certiorari pursuant to 28 U.S.C. Section

1254(1).

Il.

QUESTIONS PRESENTED FOR REVIEW.

May § 307(b)(1) of the Clean Air Act, providing for Appel-

late review of an EPA order on grounds arising more than

30 days therefrom, be nullified by failure of the reviewing

court to consider sworn proof of such jurisdictional facts?

In a petition for review of that portion of the California

Implementation Plan banning operation of motorcycles unless

certain predetermined exhaust emission standards are subse-

quently enacted by EPA, may the Court of Appeals dismiss

for lack of jurisdiction in the face of sworn proof that achieve-

ment of such standards is technologically impossible, and that

such facts could not have become known within the 30-day

appeal period?

IV.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED.

The Constitution of the United States:

“No person shall . . . be deprived of . . . property, with-

out due process of law. . .”

Constitution of the United

States, Fifth Amendment

3

The Clean Air Act (42 U.S. C. § 1857 ef seq.):

“A petition for review of the Administrator's action in

approving or promulgating any implementation plan under

section i110 or section 111(d) may be filed only in the

United States Court of Appeals for the appropriate circuit.

Any such petition shall be filed within 30 days from the

daic of such promuigation or approval, or after suck date

if such petition is based soiely on grounds arising after such

30th day.”

Section 307{%)(1) (42 U.S.C. § 1857h-5(b) )

V.

STATEMENT OF THE CASE.

The following facts are uncontested because Kawasaki's

petition for review was dismissed by the Court of Appeals on

the Administrator's motion after Kawasaki had filed sworn

affidavits supporting the invocation of Section 307(b)(1) of

the Act, but before the Administrator had an Opportunity to

file a reply.

On November 12, 1973 the Administrator promuigated an

Order pursuant to Section 110(b)(3) of the Clean Air Act

known as the California Transportation Control Plan (38 FR

31321). The Plan imposed a total ban on the operation of all

motorcycles in the principal air quality regions of the State of

California during daylight hours during the months of May,

June, July, August and September, effective January 1, 1976.

However, the ban would be suspended if the Administrator

established “legally valid and binding emission standards ap-

plicable to all motorcycles” on a nationwide basis provided that

such nationwide standards achieve a minimum emission reduc-

tion of 50% by the 1976 model year, and equal the standards

applicable to automobiles for the 1979 model year and all years

thereafter.'

1, Administrative proceedings leading to promulgation of the

Plan began on January 22, 1973 when the Administrator published

4

Although numerous other aspects of the Plan were appealed

by interested parties prior to the expiration of the 30-day

period for such appeals, the motorcycle ban was not then chal-

lenged by Kawasaki or any other party.

Formal notice aimouncing the setting of such nationwide

motorcycle emission standards was not published by the Ad-

ministrator until January 17, 1974 in an Advance Notice of

Proposed Rule Making (39 FR 2108). This Notice proposed

for the first time a technical basis (including baseline emission

assumptions and standard test procedures) for achievement of

the specified emission reductions set forth in the November 12,

1973 Plan as a condition for suspensivn of the motorcycle ban.

A deadline of March 18, 1974 was set for comment.

Acting in response to the Advance Notice, Kawasaki secured

the cooperation of its Japanese parent company, whose en-

gineers hand carried the technical data and conclusions relating

to the economic and technological possibility of achieving such

emission levels to the United States on March 11 or 12, 1974.

Kawasaki's affidavits (Appendix D, Exhibits A and B) establish

that this is the earliest date on which it knew or reasonably

could have known of the impossibility of achieving the proposed

reductions in motorcycle exhaust emissions upon which the Ad-

ministrator hac conditioned lifting the California motorcycle

ban. The technical report from Kawasaki's Japanese parent

company was edited, retyped and hand carried to the EPA’s

Ann Arbor, Michigan office in time tc meet the March 18, 1974

deadline.

Kawasaki's petition for review of the California Transporta-

tion Control Plan (Appendix A) was promptly prepared and

a Notice of Proposed Rule Making (38 FR 2195). No motorcycle

ban was then proposed or suggested. Proposed regulations were

published July 2, 1973 (38 FR 17683) and July 16. 1973 (38

FR 18948), in which a ban was proposed only for certain motor-

cycles having two-stroke engines, with no suggestion that achieve-

ment of specific emission limitations might be imposed as a condi-

tion for lifting the ban.

5

filed on April 19, 1974. The Administrator on June 17, 1974

filed & motion to dismiss (Appendix B) and supporting memo-

randum (Appendix C) alleging that the 30 day limitation

of the Statute vay jurisdictional Kawasaki filed its brief and

supporuing aflidavits in opposition io dic Administrator's motion

to dismiss on July 26, 1974 (Appendix D).

The Court of Appeals granted the motion to dismiss on August

9. 1974 (Appendix E), with the Administrator having filed no

reply memorandum.

Vi.

REASONS WilY THE WRIT SHOULD BE GRANTED.

A. The Availability of Relief Under § 307(b)(1) of the Act Is

an Important Question of Federal Law Which Must Be

Settled by This Court.

The “subsequently arising grounds” exception to the statutory

appeal period is unique among administrative statutes provid-

ing for direct review by the Courts of Appeals.* There are no

reported opinions providing guidance for its interpretation and

application.

The legislative history of the Clean Air Act plainly demon-

strates that Congress anticipated that in the highly technical

area of public health and environmental quality, research and

experience might subsequently demonstrate that the technical

mandate of a prescribed implementation plan which had become

2. While numerous statutes provide for direct review of admin-

istrative orders to a Circuit Court of Appeals, only the Clean Air

Act and the Water Pollution Control Act have such a saving provi-

sion. Under the latter, an appeal must be made within ninety davs

unless based solely on grounds arising “after such ninetieth day.”

33 U.S.C. § 1369. Other administrative statutes not having such a

provision for relief include 47 U.S.C. § 402 (Federal Communicz-

tions Commission), 7 U.S.C. § 193 (Department of Agriculture ),

42 U.S.C. § 2239 (Atomic Energy Commission), 49 U.S.C. £ 1486

(Federal Aviation Administration), and 29 U.S.C. $ 660 (Occupa-

tional Safety and Health Administration). This list of statutes allow-

ing such direct review is not exhaustive.

6

final might well be impossible to achicve, or might itself present

a greater danger to public health than the problem which it had

been intended to abate.*

For this simple and obvious reason Congress provided the

right to any person to challenge the standards, regulations and

implementation plans of the Administrator whenever it is alleged

that significant new information has become available.* This

point is made crystal clear by the following excerpt from Senate

Report No. 91-1196, Sept. 17, 1970:

“The committee recognizes that it would not be in the

public interest to measure for all time the adequacy of a

promulgation of any standard or regulation by the informa-

tion available at the time of such promulgation. In the area

of protection of public health and environmental quality, it

is clear that new information may dictate a revision or

modification of any promulgated standard or regulation

established under the Act. The judicial review section,

therefore, provides that any person tay challenge any

promulgated standard, regulation, or Gproved or promul-

3. By way of example, the 1972 amendments to the Clean Air

Act required the Administrator to adopt regulations which wouid

achieve a 90% reduction © automotive emissions by 1976. The

Administrator did so. 40 aR § 85.076-1. It soon became clear

that the only way to comply with 1975 and later reguiations was to

use exhaust catalysts or reactors and Detroit has adopted such sys-

tems for virtually all of its 1975 and later production. Thereafter

the Administrator realizea the catalytic pollution controls might

create an air quality problen of their own and comments on this

subject were solicited from th. public on March 8, 1974 (39 FR

9229). Shortly thereafter the Eavironmentai Protection Agency

itself sent to the Federal Energy Office @ research report by an in-

dependent organization stating that tie use of automotive catalysts,

when considered with other energy-saving factors, could actually

threaten public health by increasing atmospheric su'fate concentra-

tions to dangerous levels. 5 Envy. Rep. 14 (May 3, 1974).

4. The Administrator's efforts to abate air pollution now

threaten to be swept aside by the energy crisis. While the Adminis-

trator is on the one hand trying to ban the operation of gasoline-

saving motorcycles in California, on the other he is exhorting the

Detroit auto manufacturers to achieve a 40% mileage improvement

by 1980. “Auto Men Hear U.S. Plea On 40% Gas Mileage Rise”,

New York Times, October 30, 1974.

7

gated implementation plan after the date of promulgation

whenever it is alleged that significant new information has

become available.” (Emphasis supplied.)

The Administrator’s motion argued, and the Court of Appeals

found, that the 30-day limitation period of the Act is “jurisdic-

tional”. Such was never intended by Congress, as is amply

demonstrated by the foregoing quote.

The Court of Appeals has ignored both the language of the

Statute and the directive of Congress, which constitutes an

important question of Federal law which has not been, but

should be settled by this Court.

B. By a One-Sentence Summary Dismissal, the Court of Ap-

peals Has Ignored an Undisputed Allegation of Jurisdic-

tional Facts, Which Is Such a Departure from the Ac-

cepted and Usual Course of Judicial Proceedings as to

Call for This Court to Grant Certiorari.

Kawasaki's Petition for Review (Appendix A) was expressly

based vn the “subsequently arising grounds” provision of

the Clean Air Act. Upon the filing of the Administra-

tor’s motion to dismiss, Kawasaki produced sworn evi-

dence that the technological basis for the appeal was not dis-

covered and indeed could not have been discovered within 30

days following the promulgation of the November 12, 1973

California Transportation Control Plan. The Administrator has

never filed counter-affidavits or in any way responded to Kawa-

saki’s allegations, because the briefing schedule was interrupted

by the act of the Court of Appeals in entering judgment dismiss-

ing Kawasaki's petition for review. No findings were filed with

that judgment.®

5. The reluctance of the Court of Appeals to undertake the

factual determination i jurisdictional questions is perhaps under-

standable. in view of the remarks in the concurring opinion of Cir-

cuit Judges Clark and Boyle in State of Texas v. Environmental

Protection Agency, 499 F.2d 289, 321-22, 6 ERC 1897, 1919

8

The Federal Administrative Procedure Act, 5 U.S.C. § 557

et seq., requires that a record disclosing the basis of admini-

strative decisions must be made. The necessity of such a record

is that unless it is made, the courts cannot conduct a meaning-

ful, intelligent review of administrative action. Securities and

Exchange Commission Vv. Chenery Corporation, 318 U.S. 80

(1943); Phelps Dodge Corp. Vv. NLRB, 313 U.S. 177 (1941).

The same considerations which require an administrative body

to specify its reasons for decisicn are embodied in Federal Rule

of Civil Procedure 52 which requires that a court enter findings

of fact and conclusions of law in sufficient detail so as to reveal

the basis of its decision. The correct finding of facts is fully as

important as the application of correct legal rules to the facts as

found. United States v. Forness, 125 F.2d 928, cert. den. 316

U.S. 694 (2nd Cir. 1942). Findings of fact must be made in

sufficient detail and exactness to indicate to a reviewing court the

factual basis for the ultimate conclusion reached. S. S. Silher-

blatt, Inc. v. United States ex rel. Lambert Co., 353 F.2d 545

(5th Cir. 1965); Commercial Standard Air Co. v. Liberty Plan

Co., 283 F.2d 893 (10th Cir. 1966}.

It must be borne in mind that the Appellate Court is the

initial reviewing court in this situation; normally, the District

Court is the initial reviewing court for administrative matters.

Since the District Court is required by Rule 52 to enter findings

when reviewing administrative matters. then by analogy the

Appellate Court should be required to do likewise in those cases

where it occupies the position of the initial reviewing court.

Although the text of Ruie 52 recites that findings are unneces-

sary on motions, except as provided in Rule 41(‘), the latter

rule provides that whenever a court renders a judgment on the

merits against the plaintiff, the Court shall make findings as re-

quired by Rule 52. This rule also provides that a dismissal (ex-

(Sth Cir. 1974)) where they highlight the “adverse effecis flowing

from the legislative mandate that judicial review proceedings be

injected into the court system at the appellate level”.

9

cept for certain named exclusions) operates as an adjudication

on the merits.

Obviously, a determination of a fact question is necessarily in-

volved in the decision of the Appellate Court (by statute the

original reviewing court). Petitioner has alleged that its petition

is based upon grounds arising after the 30th day after the rule in

question was adopted, as provided in the statute. The Court has

seemingly determined that the grounds did not arise after the

30th day without afforcing anv opportunity for hearing and

without entering the required findings of fact.

In the administrative procedures leading up to the promulga-

tion of the Administrator’s final order, the Administrator dropped

his proposal for an outright ban on some motorcycles, and sub-

stituted a conditional ban on all motorcycles. to be hinged upon

the achievement of a complex array of technological milestones.

The injustice of changing theories in mid-stream without reason-

able notice to the parties affected is well recognized. Rodale

Press, Inc. V. Federal Trade Commission, 407 F.2d 1252, 1256-

57 (D.C. Cir. 1968). In dismissing Kawasaki's petition for re-

view without stating any findings of fact or conclusions of law,

and apparently without considering Kawasaki’s sworn and un-

controverted allegations of grounds arising subsequent to the 30

day appeal period. the Appellate Court has so far departed from

the accepted and usual course of judicial proceedings as to call

for the exercise of this Court’s power of supervision by writ of

certiorari.

VIF.

CONCLUSION.

Kawasaki's petition for review of the California motorcycle

ban was dismissed for lack of jurisdiction because the Court of

Appeals either (1) ignored the plain language of § 307(b)(1)

of the Clean Air Act. or (2) disregarded Kawasaki's sworn

I

10

and uncontradicted proof of facts supporting such jurisdiction.

Substantial questions of public importance are presented for the

future application of federal environmental law.

The granting of a writ of certiorari is respectfully solicited.

Respectfully submitted,

Geor.Gcr E. BULLWINKEL,

DoxalLD J. ERICKSON, JR.,

Attorneys for Petitioner, Kawasaki

Motors Corporation.

Prick, CUSHMAN, KECK, MAHIN

& CATE,

134 South LaSalle Street,

Chicago, Illinois 60603,

(312) 443-7500,

Of Counsel.

Al

APPENDIX A.

UNiTED S1ATES COURT OF APPEALS

For the Ninth Circuit.

KAWASAKI Motors CORPORATION,

Petitioner,

vs.

F.USSELL TRAIN, Administrator of the ENVIRONMENTAL PRO-

TECTION AGENCY: ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

PETITION FOR REVIEW.

Kawasaki Motors Corporation hereby petitions this Court

pursuant to Section 307(b) (1) of the Clean Air Act (42 U.S.C.

1857 et seq.) for review of the action of the Administrator of

the Environmental Protection Agency and the Environmental

Protection Agency in approving and promulgating the imple-

mentation plan entitled California Transportation Control Plan,

including without limitation the approval and promulgation of

amendments to Subpart F, Part 52 of Chapter I, Title 40 of the

Code of Federal Regulations, Section 52.243 which was pub-

lished in the Federal Register, Volume 38, No. 217, on Novem-

ber 12, 1973.

This petition is based solely on grounds arising after the 30th

day from the date of the foregoing approval and promulgation,

namely, the determination that the emission standards required

therein for new motorcycles sold in 1976 and later model years,

and maunfactured and sold in 1979 and later model years, are

A2

technically impossible to achieve, and the imposition of such

Plan will work an arbitrary and unreasonable hardship upon

Petitioner with no corresponding public benefit, and will de-

prive Petitioner of its property without due process of law.

Dated: April 18, 1974.

McCuTCHEN, DoyLE, BROWN & ENERSEN,

JOHN N. HAUSER,

JAMES L. HUNT,

By /s/ JAMESL. HUNT,

Attorneys for Petitioner

Kawasaki Motors Corporation.

Of Counsel:

PRICE, CUSHMAN, KECK, MAHIN & CATE,

GEORGE E. BULLWINKEL,

DONALD J. ERICKSON, JR.,

134 South LaSalle Street,

Chicago, iilinois 60603,

(312) 443-7500.

A3

APPENDIX B.

UNITED STATES COURT OF APPEALS

For the Ninth Circuit.

No. 74-1697

KAwWaSAKI Motors CORPORATION,

Petitioner,

vs.

RUSSELL E, TRAIN AND ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

MOTION TO DISMISS.

Respondents, Russell E. Train and the Environmental Pro-

tection Agency, move this Court, pursuant to Rule 27 of the

Appellate Rules of Civil Procedure, to dismiss the petition to

review on the ground that this Court lacks jurisdiction under

Section 307(b)(1) of the Clean Air Act, 42 U.S.C. sec. 1857h-

5(b)(1) to review the regulation since the petition was filed

out of time.

Respectfully submitted,

MICHAEL D. GRAVES,

Attorney,

Department of Justice,

Washington, D.C. 20530.

A4

APPENDIX C.

UNITED STATES COURT OF APPEALS

For the Ninth Circuit.

No. 74-1697

KAWASAKI Motors CORPORATION,

Petitioner,

vs.

RUSSELL E. TRAIN AND ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

MEMORANDUM IN SUPPORT O+ MOTION TO DISMISS.

Statement

Kawasaki Motors Corporation, pursuant to Section 307(b) (1)

of the Clean Air Act, 42 U.S.C. sec. 1857h-5(b)(1), filed with

this Court on April 18, 19 74, a petition to review the motorcycle

limitation regulation contained in the California Transportation

Control Plan promulgated by the Administrator of the Environ-

mental Protection Agency on November 12, 1973, 40 C.F.S.

sec. 52.243."

1. This regulation bans the operation of motorcycles in specified

air quality regions in the state of California between the hours of

6:00 a.m. and 6:00 p.m. during May through September. This ban,

which is scheduled to go into effect on January 1, 1976, will be sus-

pended until January 1, 1975, and possibly thereafter, if but only

if the Administrator establises “legally valid and binding” emission

standards applicable to all new 1976 and later model year moto-

cycles.

AS

The Petition to Review Was Filed Out of Time.

Section 110(c) of the Clean Air Act, 42 U.S.C. sec. 1857c-

5(c), sequires the Administrator to promulgate implementation

plans for a state under certain circumstances. Pursuant to that

authority, the Administrator on November 12, 1973, promul-

gated the California Transportation Control Plan which, inter

alia, regulates emissions from motorcycles.

Section 307(b)(1) of the Act provides that any person may

seek review of the promulgation of an implementation plan in

the United States Court of Appeals for the judicial district in

which such person resides or transacts business. The statute, how-

ever, very specifically limits the time within which a person may

seek judicial review; the time limit is thirty days after the date

of promulgation.” It would be difficult to imagine a statutory

deadline which is more explicit than the one involved here.

Courts of Appeals, including this Court, have consistently

dismissed petitions to review which were filed beyond the strict

statutory deadlines established in the Clean Air Act. In Sears,

Roebuck and Company v. Environmental Protection Agency,

No. 74-1002 (C.A. 9, 1974), this Court dismissed a petition

to review filed one day after the statutory deadline. A copy of the

order dismissing the petition is attached as Appendix A. Accord,

Darrah v. Environmental Prvuiection Agency, No. 72-2926

(C.A. 9, 1972) (petition filed eighteen days late); National

Association of Industrial Parks v. Environmental Protection

Agency, No. 74-1013 (C.A. 3, 1974) (petition filed fifteen days

late) Dore Wrecking Company vy. Environmental Protection

2. Section 307(b)(1) of the Clean Air Act in part provides:

A petition for review of the Administrator’s action in approv-

ing or promulgating any implementation plan under section 110

or section 111(d) may be filed only in the United States Court

of Appeals for the appropriate circuit. Any such petition should

be filed fithin 30 days from the date of such promulgation or

approval, or aftcr such date if such petition is based solely on

grounds arising after such 30th day.

A6

Agency, No. 73-1686 (C.A.D.C. 1973) (petition filed forty-two

days late). Copies of the orders in Darrah, N.A.I.P. and Dore

are enclosed as Appendices B, C, and D, respectively.

Moreover, ir. situations where parties attempted to intervene

in existing actions after the statutory time limit for filing petiti-

tions to review, the courts have refused to accept jurisdiction

over the prospective intervenors. Duquesne Light Company v.

Environmental Protection Agency, 481 F.2d 1, 10 (C.A. 3,

1973); Sears, Roebuck and Company v. Environmental Protec-

tion Agency, No. 73-2095 (C.A. 3, 1974); Fitz-Inn Auto

Parts Inc. y. Environmental Protection Agency, No. 73-1386

(C.A. 1, 1974). Copies of the orders in Sears and Fitz-Inn are

enclosed as appendices E and F, respectively.

It is clear that petitioner, which alleges that the regulation

will cause it economic hardship, has belatedly recognized the

implications to itself of the regulation (Kawasaki Petition at 2).

However, that recognition does not confer jurisdiction upon this

Court. Petitioner, for reasons best known to itself, elected to

ignore Section 307(b)(1) and filed its petition to review one

hundred fifty-seven days after promulgation of the regulation.

In apparent recognition of this fatal infirmity petitioner attempts

to effect the only cure in the Act* by stating that its

petition is based solely on grounds arising after the 30th

day from the date of . . . promulgation, namely, the deter-

mination that the emission standards required therein for

new motorcycles sold in 1976 and later model years, are

technically impossible to achieve . . . . [Kawasaki Petition

at 2.]

The regulation does not require emission standards for new

motorcycles. It merely provides that if emission standards are

promulgated by EPA, the ban on motorcycle operation does not

apply. If emission standards are not established, the absolute

3. A petition to review may be filed later than the thirtieth day

after promulgation only if it is based upon grounds arising after such

thirtieth day. Section 307(b) (1).

A7

ban on motorcycles operation continues in effect. Emission stand-

ards for new motorcycles have not yet been issued. Therefore,

insofar as the petition seeks review of the ban on motorcycle use,

the petition was filed out of time. If petitioner seeks review of

the emission standards for new motorcycles, the petition was filed

prematurely and in the wrong court.° In either case, the petition

must be dismissed.

Conclusion.

For the foregoing reasons, this Court should dismiss the

petition to review.

Respectfully submitted,

MICHAEL D. GrRavVEs,

Attorney,

Department of Justice,

Washington, D.C. 20530.

4. The Administrator believes, however, that “significant reduc-

tions in the emissions from new motorcycles can be achieved.” 38

Fed. Reg. 31236 (November 12, 1973). Acting on that belief, he

called for public comment on proposed emission standards. 39 Fed.

Reg. 2108 (January 17, 1974).

5. Section 307(b)(1) of the Clean Air Act requires any petition

to review an emission standard to be filed in the Court of Appeals

for the District of Columbia Circuit.

A8

APPENDIX D.

UNITED STATES CouRT OF APPEALS

For the Ninth Circuit

KAWASAKI Motors CORPORATION,

Petitioner,

vs.

RUSSE}L TRAIN, Administrator of No. 74-1697

the ENVIRONMENTAL PROTECTION

AGENCY; ENVIRONMENTAL PRO-

TECTION AGENCY,

eee?

Respondents. }

PETITIONER’S BRIEF IN OPPOSITION TO

RESPONDENTS’ MOTION TO DISMISS.

Petitioner Kawasaki Motors Corporation (Kawasaki) hereby

presents its brief in opposition to the motion of the Respondents

(hereinafter referred to as “the Administrator’) to dismiss

Kawasaki's Petition For Review of the California Transporta-

tion Control Plan promulgated on November 12, 1973.

The Factual Background.

Kawasaki's sole basis for this appeal rests on grounds arising

more than 30 days after the promulgation of the Administrator’s

order complained of. Specifically, the grounds constitute the

economic impracticality and technological impossibility of

achieving certain specified reductions in the exhaust emissions

from production motorcycles, which appeared for the first time

in the Administrator's final order in the Federal Register of

November 12, 1973.

A9

Under that order, if the Administrator's specified exhaust

emission levels are not subsequently ordered by the Environ-

mental Protection Agency (EPA) at the national level by

“legally valid and bindiry emission standards” the State of

California must prohibit tie operu:on of all motorcycles in

each air quality region during daylight hours for six months

out of every year, commencing January 1, 1976 (38 F.R.

31264).

Thus the Administrator has effectively predetermined the

outcome of presently pending federal rulemaking on exhaust

emissions from new motorcycles. Rulemaking proceedings on

this subject were only initiated in an Advance Notice published

-anuary 17, 1974 (39 F.R. 2108) and for which even draft

regulations have not yet been promulgated.* Yet if EPA’s final

standards do not meet the Administrator's predetermined mini-

mum requirements as set forth in the November 12, 1973

California Transportation Control Plan, motorcycle operation

will be effectively banned in California six months out of every

year, to the obvious economic detriment of Kawasaki and the

motorcycle industry in general.

No hint of this result appeared in any of the Administrator's

promulgations leading to the November 12, 1973 order. (See

generally, affidavit of Roger Hagie attached hereto as Exhibit A ).

In the Administrator's final order of November 12. 1973,

there appeared for the first time the condition that if certain

specified nationally applicable motorcycle emission standards

were not enacted (and for which no rulemaking procedures had

yet been initiated) then the motorcycle ban would be imposed. **

* Informal conversations between Kawasaki's counsel and Rod

Jenkins, assistant to Eric Stork of the EPA’s Office of Mobile

Emission Sources, suggests that such draft regulations will not

appear before early 1975.

** Not surprisingly, an Advance Notice of Proposed Rulemaking

appearing January 17, 1974 proposes exactly those predetermined

emission standards.

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Even though Kawasaki kept abreast of the Administrator's

pronouncements and even participated in hearings on the Cali-

fornia Transportation Control Plan in J uly, 1973 (Hagie affida-

vit, Exhibit A) the promulgation of the Administrator’s final

order on November 12, 1973 came as a complete surprise.

Kawasaki had no suggestion that this result was forthcoming

and no basis on which to determine whether the Administra-

tor’s preconceived emission standards were either economically

feasible or technologically possible. It was only when the Ad-

vance Notice of Proposed Rulemaking appeared on January

17, 1974 that Kawasaki had any concrete basis with which to

consult the engineers of the Research and Development De-

partment of its parent company in Japan, Kawasaki Heavy In-

dustries, Ltd. (See affidavit of 1. Tamura, attached as Ex-

hibit B).

When Kawasaki received the hand-carried technical report

of the Japanese engineers Otsuki and Takemoto on or about

March 12, 1974, Kawasaki first realized that such levels could

not in all likelihood be achieved within the time frame per-

mitted by the Administrator, and that the California motorcycle

ban would thus be unavoidable (Tamura affidavit, Exhibit B).

The Administrator's Position.

In his Memorandum in Support of Motion to Dismiss, the

Administrator has not only mis-cited both the facts and the

governing statute, but has gratuitously thrown in dismissal

orders from seven other cases, six of which are unreported and

none of which have any bearing whatever on the issue pre-

sented here, namely, Kawasaki's statutory right to petition for

review based solely on grounds arising after the thirtieth day

from the date of the Administrator's order.

Contrary to the Administrator’s position on page 2 of his

brief, Section 307(b) (1) of the Clean Air Act expressly allows

the filing of a petition more than 30 days after the promulga-

All

tion of the order complained of “if such petition is based solely

on grounds arising after such thirtieth day”. Such grounds are

alleged in Kawasaki’s petition in precisely the same words.

The Administrator further asserts the following:

“The regulation does not require emission standards

for new motorcycles. It merely provides that if emission

standards are promulgated by EPA, the ban on motor-

cycle operation does not apply.”

(Administrator's brief, pages 4-5)

Apparently the Administrator has forgotten the terms of his

own order. The ban is not to be lifted “merely” if the EPA

adopts any nationally applicable motorcycle emission standards.

To avoid the ban, the Administrator requires in odvanee that

such standards represent “at least a 50% reduction in present

emission levels” of certain pollutants in 1976, and “at least the

same degree of emission control” as is required for automobiles

in 1979 (38 F.R. 31246, November 12, 1973).

If the Administrator had not attempted to short-circuit ihe

administrative rulemaking process (which he subsequently and

belatedly began on January 17, 1974), Kawasaki would have

no dispute. Instead, he has said in effect: “You may have your

hearings and other rulemaking procedures, but if the outcome

is not as I have ordered it to be on November 12, 1973, the

California motorcycle ban will take effect”.

As clearly pointed out in the preceding section and the Hagie

affidavit (Exhibit A) Kawasaki and the rest of the motorcycle

industry were given no hint of the Administrator’s intention to

determine in advance the outcome of the now-pending motor-

cycle emission rulemaking proceedings. The specific emission

levels sought to be enacted by the Administrator did not see the

light of day until they appeared in the Administrator's final order

on November 12, 1973. Neither Kawasaki nor anyone else in

the industry had any opportunity to evaluate the economic

feasibility or technological possibility of meeting the levels on

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the dates required. Only by investigations started subsequent to

that time could they hope to determine whether any grounds for

appeal existed (see Tamura affidavit, Exhibit B).

The injustice of such a position is obvious. As stated in the

leading case of Rodale Press, Inc. v. Federal Trade Commission,

407 F.2d 1252 (D.C. Cir. 1968):

.. “Hence it is well settled that an agency may not change

theories in mid-stream without giving respondents reason-

able notice of the change. By substituting an issue . . . for

the one framed by the pleading, . . . the Commission has

deprived petitioners of both notice and hearing on the sub-

stituted issue. The evil at which the statute [Section 5 of the

Administrative Procedure Act] strikes is not remedied by

observing that the outcome would perhaps or even likely

have been the same. It is the opportunity to present argu-

ment under the new theory of violation, which must be sup-

plied.” (Citations omitted, emphasis in original.)

407 F.2d at 1256-57.

The Administrator finally argues that “Courts of Appeals, in-

cluding this Court, have consistently dismissed petitions to re-

view which were filed beyond the strict statutory deadlines estab-

lished in the Clean Air Act”, citing a total of seven cases. Three

of the cases involve attempts to intervene rather than an appeal

as of right which is the situation here. The remaining four cases

do not involve the present issue of subsequently arising grounds

for appeal. (See the affidavit of John E. Burns. attached as

Exhibit C.)

If the Administrator will review his own files, he must admit

that he has no case law whatever in support of the present mo-

tion.

The Basis of This Appeal.

The Administrator cannot deny that the preconceived national

motorcycle emission standards appearing in the November 12,

1973 order were never proposed or suggested until the order

appeared in the Federal Register. Only on January 17, 1974

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were these predetermined regulations clarified and expanded in

the form of an Advance Notice of Proposed Rulemaking. It was

only at this point that Kawasaki and the motorcycle industry in

general were given suflicient information with which to study

and evaluate the economic feasibility and technological pos-

sibility of complying with these new standards.

The technical report containing tie -esuits of this study and

evaluation was hand-carried from Japan to Kawasaki's Santa

Ana, California headquarters about March 11, 1974. (Tamura

affidavit, Exhibit B.) After analysis by Kawasaki's California

technical staff and legal counsel, the impossibility of achieving

the Administrator's predetermined requirements became ap-

parent, thereby presenting for the first time the grounds for this

appeal.

Kawasaki's petition was promptly prepared and filed by mail-

ing April 18, 1974. Subsequently, Kawasaki learned that its

competitors Suzuki and Yamaha had independently reached the

same conclusion on the impossibility of complying with the Ad-

ministrator’s predetermined emission levels. (Hagie affidavit,

Exhibit A.)

Kawasaki's Position is Meritorious,

and Unless This Appeal is Allowed to Proceed,

The California Motorcycle Ban

Will Entirely Escape Appellate Review.

Counsel is informed by the Administrator's attorneys that

more than 200 separate appeals have been filed contesting vari-

ous aspects of the California Transportation Control Plan, but

that Kawasaki is the only parity seeking to obiain review of the

Administrator’s predetermined emission standards and contin-

gent ban on motorcycle operation in California.

The Administrator is plainly seeking to read the “subsequently

arising grounds” clause out of the Clean Air Act. This clause

is unique among administrative statutes allowing direct appeal

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to Courts of Appeals. Through exhaustive research counsel could

find no other example of such a curative clause, and thus no

case law concerning it. The legislative history, however, is clear:

“The committee recognizes that it would not be in the

public interest to measure for all time the adequacy of a

promulgation of any standard or regulation by the infor-

mation available at the time of such promulgation. In the

area of protection of public health and environmental

quality, it is clear that new information will be developed

and that such information may dictate a revision or modi-

fication of any promulgated standard or regulation estab-

lished under the Act. The judicial review section, there-

fore, provides that any person may challenge any promul-

gated standard, regulation, or approved or promulgated

implementation plan after the date of promulgation when-

ever it is alleged the significant new information has be-

come available.”

Senate Report No. 91-1196,

September 17, 1970.

The Administrator further argues that the limitation period

is “jurisdictional”. While an appeal from a final decision of a

lower court is jurisdictional, such an appeal from the decision

of an administrative agency is one of limitation, and is measured

by a considerably less stringent standard in order to protect the

interests of the parties. Diva Laboratorium Aktiengeselischaft v.

DeLoney & Company, 237 F. Supp. 868, 870 (D.D.C. 1965).

No Delay or Hardship Will

Result by Granting This

Petition for Appellate Review.

As previously pointed out, the Administrator is already faced

with more than 200 other timely petitions for review, testing

virtually all aspects of the California Implementation Plan ex-

cept the one for which Kawasaki seeks review in this proceeding.

We understand that the Record has not yet been filed, and in

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any event can easily be supplemented to include the relatively

short hearings pertaining to this issue. Briefs are not due until

September.

The orderly progress of this case will not be impeded, and a

point of substantial public interest will be preserved, if Kawa-

saki's Petition For Review is allowed in this case.

Conclusion.

The Administrator, as pointed out above, has turned one

administrative rulemaking process into a vehicle for creating

and enforcing a predetermined result in a subsequent rule-

making proceeding. He has done so without presenting the

crucial issue, that of specific numerical motorcycle emission

standards, to the public for intelligent participation and comment

prior to the promulgation of his November 12, 1973 order.

The appellate review provision of the Clean Air Act is

unique in allowing judicial review after the expiration of the

usual 30-day period where, in the words of the Senate Report,

“it is alleged that significant new information has become avail-

able”. In the present case there has been such an allegation, both

in the Petition for Review and in the affidavits herein (see

Tamura affidavit, Exhibit B). Kawasaki could not possibly have

been in a position to evaluate and comment on the emission

standards announced in final form by the Administrator on

November 12, 1973 within 30 days after such announcement.

The reasons are twofold. First, because the Administrator gave

no hint or suggestion prior to the date of announcement that

such standards were to be imposed. Second, because it took

Kawasaki more than 30 days, even when working at top speed,

to obtain from its research and development engineers in Japan

the necessary information to respond to the pending rulemaking

process which was commenced by the Administrator on January

17, 1974 (Tamura affidavit, Exhibit B).

Al6

If this petition is dismissed, the Administrator’s obviously

improper procedure will go unchallenged—a bitter precedent

indeed when the Clean Air Act expressly provides for relief

in such cases.

Respectfully submitted,

JAMES L. HUNT,

Attorney for Petitioner, Kawasaki

Motors Corporation.

Of Counsel:

GEORGE E. BULLWINKEL.

DONALD J. ERICKSON, JR.,

PRICE, CUSHMAN, KECK, MAHIN

& CATE,

134 South LaSalle Street,

Chicago, Illinois 60603,

(312) 443-7500.

Al7

ExuHIisiT A.

UNITED STATES COURT OF APPEALS

For the Ninth Circuit.

KAWASAKI Motors CORPORATION, )

Petitioner,

vs.

RusseLL Train, Administrator of ¢ No 74-1697

the ENVIRONMENTAL PROTECTION

AGENCY; ENVIRONMENTAL PRo-

TECTION AGENCY,

Respondents. }

AFFIDAVIT OF ROGER HAGIE.

ROGER HaGiE, being sworn, deposes and says that:

1. 1am employed by Petitioner Kawasaki Motors Corpora-

tion as legislative coordinator at Kawasaki's principal office in

Santa Ana, California. As one of my responsibilities I am

charged with keeping abreast of legislation and rulemaking

proceedings by state and federal agencies in connection with

motorcycle exhaust emissions.

2. In connecton with the ban on motorcycle operations

promulgated by the Administator on November 12, 1973,

Kawasaki Motors Corporation first became aware of an an-

nouncement in the Federal Register of January 22, 1973 stating

that the Administrator intended to propose implementation

plans for certain regions in California as a result of an order

of the United States District Court for the Central District of

California. This announcement was styled a “notice of proposed

rulemaking” and contained no proposed regulation pertaining

to motorcycle registration or operation. The only mention of

any motorcycle controls whatever was in the preamble which

Als

suggested that the number of vehicle miles traveled might be

reduced by “limiting the number of automobiles and motor-

cycles registered... .” (38 F.R. 2195).

3. The next announcement by the Administrator on this

subject appeared in the Federal Register of July 2, 1973 where

specific regulations were proposed under the heading “Motor-

cycle Limitation Program”. This proposal required the State of

California to prohibit the operation of 2-stroke mioiorcycles

(equipped with 2-stroke engines rather than the more common

4-stroke type) in daylight hours during six months of the year

in the Los Angeles region, and prohibiting the State from regis-

tering in 1974 more motorcycles than the total registration in

1973. No suggestion was made that any such controls might

be contingent upon emission rulemaking at the national level,

or on predetermined emission limits to be set in the future.

4. On July 16, 1973 the Administrator promulgated pro-

posed rules in the Federal Register pertaining to other air quality

regions in the State of California, containing the same motor-

cycle control proposals as in the July 2, 1973 proposal pertain-

ing to the Los Angeies region. Again, no suggestion was made

of making the control program contingent upon the enactment

of predetermined motorcycle emission limits at the national

level.

5. In response to the Administrator’s proposed rulemaking,

hearings were held in July, 1973 in which comments were

solicited from major motorcycle manufacturers on the possibility

of significant emission reductions. On cross-examination by the

Administrator's representative there were certain questions di-

rected to the witnesses which assumed the possibility « ¢ certain

specified emission level reductions. Witnesses for Kawasaki

and two major competitors (Yamaha and Suzuki) were thus

induced to speculate on whether 2 50% short-term reduction

could be achieved on certain exhaust constituents, and a 90%

reduction in the long term. A Kawasaki witness (who was

not represented by counsel) was also induced to speculate

Al9

that a 90% reduction from some base figure (not specified)

was “possible” although there would be “some pretty severe

problems . . . which could take some considerable lead time.”

(Record, page 216).

6. The first suggestion of a total motorcycle ban for Cali-

fornia air regions (as opposed to a ban on 2-strokes only)

occurred in the Administrator’s final rulemaking appearing in

the Federal Register for November 12, 1973. This document

also announced for the first time the Administrator’s program

to condition the lifting of the motorcycle ban on the adoption

of predetermined motorcycle emission standards achieving at

least a 50% reduction of specified exhaust constituents by

the 1976 model year, and achieving emission levels equal to

automobiles by the 1979 model years. The Administrator pur-

ports to base this result on the testimony of motorcycle manu-

facturers (38 F.R. 31236).

7. The first suggestion of the baseline from which the

proposed emission reductions would be measured occurred in

the Advance Notice of Proposed Rulemaking appearing in the

Federal Register on January 17, 1974. No specific regulations

were proposed, but comments were instead invited on several

aspects of control technology. The proposal suggested certain

rough emission limits with no statement of the sampling or

measurement techniques which would significantly affect nu-

merical results.

8. The Advance Notice called for comments to the ;PA

office in Ann Arbor, Michigan no later than March 18, 1974.

Acting in response to this request Kawasaki Motors Corporation

secured the cooperation of its parent company in Japan, Kawa-

saki Heavy Industries, Ltd., and Kawasaki's response was hand

carried to the United States by engineers of the parent company,

arriving here about March 11 or 12, 1974. This is the earliest

date on which Kawasaki knew of the facts and conclusions

which were thereafter hand carried to the EPA to meet the

March 18, 1974 deadline.

AE 8

A20

9. Similar facts and conclusions were contained in the sub-

missions by Kawasaki’s competitors Suzuki and Yamaha. Su-

zuki’s comments were first received by us on May 10, 1974,

Yamaha’s comments, which had to be obtained from the EPA’s

public records office in Washington, D. C., were not received

until June 6, 1974. Both of these competitors reached the

same conclusion reached by Kasawaki Heavy Industries, Ltd.,

namely, that the proposed 50% reductions by 1976 and auto-

motive level limits by 1979 were technologically and practically

impossible to achieve by those dates.

10. As a consequence of becoming aware of the technolog-

ical and practical impossibility of meeting the Administrator's

predetermined requirement for the lifting of the motorcycle

ban in California, Kawasaki Motors Corporation promptly

moved to prepare and file its petition to review in this Court,

which petition was served by mailing April 18, 1974.

ROGER HAGIE

Subscribed and Sworn to before me this

SORA, |

ed EE

Notary Public

A21

EXHIBIT B.

UNITED STATES COURT OF APPEALS

For the Ninth Circuit.

KAWASAKI Motors CORPORATION, 7}

Petitioner,

vs.

RusseLL TRAIN, Administrator of | No 741697

the ENVIRONMENTAL PROTECTION

AGENCY; ENVIRONMENTAL PRO-

TECTION AGENCY,

Respondents. )

AFFIDAVIT OF I. TAMURA.

I. TAMURA, being sworn, deposes and says that:

1. Iam Director of Engineering for Kawasaki Motors Cor-

poration, the Petitioner in this cause. As part of my duties,

I coordinate the exchange of technical information between

Kawasaki Motors Corporation and its parent company in Japan,

Kawasaki Heavy Industries, Ltd.

2. In response to the Advance Notice of Proposed Rule-

making brought to my attention by Kawasaki's legislative co-

ordinator Roger Hagie subsequent to its publication on January

17, 1974, I caused the engineering department at Kawasaki

Heavy Industries, Ltd. located in Akashi, Japan, to investigate

the practicality and technical possibility of achieving certain

specified reductions in motorcycle emissions as set forth in

the Advance Notice.

3. In response to our request the Kawasaki Heavy Indus-

tries, Ltd. First Engineering Department under the direction

of Mr. Otsuki undertook a program of research and evaluation

A22

of the Advance Notice and proposed standards. This work was

done by Mr. Kato, Manager of the Emissions Research and

Development Department, and his Assistant Manager Mr.

Takemoto.

4. On or about March 12, 1974 Mr. Otsuki and Mr. Take-

moto arrived in the offices of Kawasaki Motors Corporation

in Santa Ana, California, hand-carrying the document which,

after editing and revision, became Kawasaki's response to the

Advance Notice, filed with the EPA’s laboratory in Ann Arbor,

Michigan on March 18, 1974.

5. As stated in Kawasaki's response to the Advance Notice:

“Kawasaki must respectfully dissent from the apparent

comments of certain major manufacturers of 2-stroke

motorcycles in connection with the promulgation of Trans-

portation Control Plans. We seriously doubt the ability of

any 2-stroke engine manufacturer to achieve a 50% avei-

age reduction in exhaust emissions with existing technol-

ogy. Our own efforts have achieved this level of success

with only one model, a large-displacement engine having

very poor emission characteristics, and that only in care-

fully controlled laboratory conditions.” (Submission,

page 2)

6. As a consequence of this information, and the realization

that the proposed reduction by the Administrator in the imple-

mentation plan promulgated November 12, 1973 was im-

possible to achieve as a matter of technological fact, Kawasaki

caused to be mailed a petition to review that plan. This petition

was mailed April 18, 1974 only 30 days from the due date of

the Advance Notice comments. (Subsequent to that mailing we

have reviewed the submissions of our competitors Suzuki and

Yamaha, and determined that they are in accord with our

conclusion, in spite of what the Administrator believes they had

represented at hearings in 1973.)

7. For the foregoing reasons it is the position of Kawasaki

Motors Corporation that the technological impossibility of meet-

A23

ing the Administrator’s predetermined emission regulations, on

which the lifting of the California motorcycle ban is contingent,

did not arise until more than 30 days after the promulgation of

the California Implementation Plan on November 12, 1973.

Il. TAMURA

Subscribed and Sworn to before me this _..... day of

< atabiilie is ae

Notary Public

A24

EXHIBIT C.

UNITED STATES COURT OF APPEALS

For the Ninth Circuit.

KAWASAKI MoTors CORPORATION _ )

Petitioner,

vs.

RUSSELL TRAIN, Administrator of the , No. 74-1697

ENVIRONMENTAL PROTECTION

AGENCY; ENVIRONMENTAL PROTEC-

TION AGENCY,

Respondents. )

AFFIDAVIT OF JOHN E. BURNS.

JOHN E. BuRNS, being sworn, deposes and says that:

1. I am associated with the firm of Price, Cushman, Keck,

Mahin & Cate of Chicago, Illinois, attorneys for Petitioner

Kawasaki Motors Corporation in this cause.

2. On July 1, 1974 I undertook to check the citations of

authority in the Respondents’ Motion to Dismiss mailed to

this Court June 17, 1974. In particular, I investigated the four

cases cited in the Respondents’ brief at page 3 which purportedly

hold that “Courts of Appeals, including this Court, have con-

sistently dismissed petitions to review which were filed beyond

the strict statutory deadlines established in the Clean Air Act.”

3. While the Respondents attached copies of the bare orders

of dismissal in each of the foregoing cases, no suggestion appears

of any facts or allegations raising the issue of grounds arising

after the thirtieth day from the date of promulgation of the

Administrator's implementation plan, as provided under Section

307(b)(1) of the Act. Since the decisions are unreported, the

facts surrounding such issues, if any, could not be found through

legal research.

A25

4. I therefore was compelled to contact the attorney repre-

senting the Petitioner in each of the cited cases by first calling

the Clerk of Court, obtaining access to the docket file, and

thereby obtaining the name of each respective attorney. In doing

so I learned the following:

5. in Sears, Roebuck & Company v. Environmental Pro-

tection Agency, No. 74-1002 (9th Cir. 1974) Mr. Philippe J.

Monet of Alhambra, California, represented the Petitioners and

informed me that the issue of subsequently arising grounds was

neither briefed nor argued.

6. In Darrah v. Environmental Protection Agency, No. 72-

2926 (9th Cir. 1972) Mr. Darrah was contacted in Hawaii and

informed us that the issue of subsequently arising grounds of

appeal was never presented, with the Petitioner choosing not to

resist the Administrator’s motion to dismiss.

7. In National Association of Industrial Parks v. Environ-

mental Protection Agency. No. 74-1013 (3d Cir. 1974) the

Petitioner's attorney Peter Sudler was contacted in Newark,

New Jersey, and he informed us that the issue of subsequently

arising grounds was never raised, and that the appeal was

dismissed by consent.

8. In Dore Wrecking Company v. Environmental Protec-

tion Agency, No. 73-1686 (D.C. Cir. 1973) I contacted

Mr. William I. Harkaway in Washington, D.C., attorney for

Petitioners, and was informed that the basis for appeal was

lack of notice, and that the issue of grounds arising after the

thirtieth day was only added later in a single paragraph at the

cod of a 10-page reply brief, and not fully presented and argued

on the merits.

/s/ JOHN E. BurRNs,

John E. Burns.

Subscribed and Sworn to before me this 12 day of July, 1974.

/s/ THERESE POTTER,

Notary Public.

A26

APPENDIX E.

UNITED STATES COURT OF APPEALS

For the Ninth Circuit

KAWASAKI Motors CORPORATION,

Petitioner,

vs.

RUSSELL TRAIN, Administrator of { No. 74-1697

the ENVIRONMENTAL PROTECTION

AGENCY; ENVIRONMENTAL PRO-

TECTION AGENCY,

Respondents. )

ORDER.

Before: CHoy and SNEED, Circuit Judges.

The appeal herein is dismissed for lack of jurisdiction. 42

U.S.C. § 1857h-5(b).

/s/ HERBERT J. C. Cuoy,

/s/ JOSEPH L. SNEED,

U.S. Circuit Judges.