ADAMO WRECKING CO. v. UNITED STATES

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Argument of Stanley M. Lipnick

Chief Justice Warren E. Burger: We will hear arguments next in 76-911, Adamo Wrecking Company against the United States.

Mr. Lipnick you may proceed whenever you are ready.

Mr. Stanley M. Lipnick: Thank you, Mr. Chief justice may it please the Court.

This is a criminal case arising under the Clean Air Act as it stood prior to the amendment of this past summer.

Section 112 (b) of the as it then stood, instructed the administrator of the United States Environmental Protection Agency to promulgate an emission standard to control emissions of hazardous air pollutants, one of which is asbestos.

The administrator issued a work practice regulation for demolition operations and gave it the title Emission Standard.

Section 112 (c) of the Act prohibits a violation of an emission standard.

My client is accused by an indictment of violating Section 112 (c) of the Act for an alleged failure to follow the Environmental Protection Agency's work practice rule.

In the trial court, we challenged the indictment on the ground that a violation of an emission standard is an essential element of the crime and that the work practice rule is not the same thing as an emission standard, notwithstanding its title.

The trail court agreed and dismissed the first count of a two count indictment which is the only count now before this Court.

The Government appealed and Sixth Circuit reversed.

The Sixth Circuit held that our position amounted to a challenge to the validity of the regulation itself.

Unknown Speaker: May I ask what is left in the case after the amendments?

Mr. Stanley M. Lipnick: I am sorry sir.

Unknown Speaker: What is left in -- your issue after these amendments this summer?

Mr. Stanley M. Lipnick: Well, one thing that is left whether my client has to go trail and possibly be convicted of felony.

Unknown Speaker: I know, but the issue is in the meaning of that statue, is not it?

Mr. Stanley M. Lipnick: The issue -- the first issue as I understand it sir, is the meaning of Section 307 (b) (2) of the Act which by its language says their shall be no judicial review in a civil or criminal proceeding for enforcement of action which could have been reviewed under the statutory review procedure.

I think one issue which is still open for decision by this Court is whether that statute, that preclusion provision is in fact an absolute preclusion of all judicial consideration of the propriety of actions by the administrator, even actions which on their face are alleged to be in violation of his duties under the Act.

Justice Byron R. White: Now, if it is an absolute preclusion, do you make any claim in this case or have you that kind of preclusion purported conclusion would be unconstitutional?

Mr. Stanley M. Lipnick: I think that is a question of fact which would have to be developed at trial sir.

I think it would depend on whether we were able to show at trial whether we --

Justice Byron R. White: But have you raised any constitutional issue about it?

Mr. Stanley M. Lipnick: Not by our motion to dismiss sir.

I think a --

Justice Byron R. White: And you have not pressed any any constitutional issue here?

Mr. Stanley M. Lipnick: No sir, except for the fact that I do believe that there is a question of adequacy and effectiveness of the statutory remedy which could invoke the constitutional question and which would require development of a litigation of an issue of fact in the trial court.

The preclusion Section as I indicated says there is to be no judicial review in enforcement proceedings of regulations which could be reviewed under the statutory review procedure.

The review procedure is not now available to my client and could have been initiated only by filing a petition for review within 30 days of the date on which the regulation was issued.

The Court of Appeals in our view ignored the language of Section 112 (c) itself which prohibits violation of an emission standard and which does not prohibit a violation of any regulation which the administrator might issue, concerning asbestos.

From that perspective we are not prepared to concede that the trial court was even reviewing the regulation within the meaning of the preclusive provision, as opposed to simply looking at the face of the regulation to ask itself whether it was in fact the type of regulation specified in the criminal prohibition.

However, if that should be considered judicial review, we believe that it is review which is within the sphere of this Court's decisions, which permit a limited type of review even in circumstances when review of agency action is ordinarily unavailable.

We trace that starting with this Court's decision in Leedom v. Kyne in which this Court indicated that statutory review provisions normally contemplate review of agency action which is at least on its face within the scope of agency authority, and therefore, permitted an inquiry into the question of whether the agency in that case had complied with specific statutory instructions.

Subsequently, in a case cited by the Government in the its brief Brotherhood of Railway Clerks v. Non-Contract Employees this Court again said that non statutory review is available to assure that agency action does not exceed the statutory authority and that action which is ordinarily not reviewable, is in fact reviewable to the extent of ascertaining that the agency performed its statutory duty.

And in the Brotherhood of Railway Clerks case this Court as I read the decision entered holdings on the merits on those limited issues of whether the agency action is within the scope of its authority and whether it at least on its face purported to comply with the agency statutory duty.

Those holdings were not jurisdictional as I read them, they were holdings on the merits.

Last year in the Thermotron Products case concerning the removal procedure from federal to state, from state to Federal Courts rather and remand procedures back, this Court held that the statutory preclusion of review of a remand order which on its face purported to be absolute still permitted judicial review in the limited sense of ascertaining whether a trial court order of remand was at least based upon one of the grounds for remand specified in the statute.

This past June, the two Voting Act cases which are cited in the Government's brief, I believe continue to recognize this principle of the availability of limited review.

In Briscoe v. Bell the Court avoided holding that coverage determinations by the Attorney General and by the Director of Census were not open to judicial inquiry, at least to ascertain whether there was reliance by those officials upon the criteria specified in the statute for making those determinations.

And on the same day in Morris versus Gressette the majority opinion of this Court noted that Congress like the Courts operates on the assumption that public officials will perform there duty and indicates that line of inquiry, harkens back to Leedom v. Kyne and to Railway Clerks which indicates to me a line of authority of this Court which is very sound in my view and very persuasive that legislation governing the scope of review of agency action simply does not contemplate agency action which is lawless.

That even where the review provisions say review is unavailable, there can be at least an inquiry to ascertain whether an agency took action, which on its face complied with what a statute told the agency to do.

Justice William H. Rehnquist: Of course this statute did not say review was unavailable, it said it just had to be taken within the certain time, did not it?

Mr. Stanley M. Lipnick: Well, in our position now it is unavailable.

Justice William H. Rehnquist: Well, I suppose you can say that about the statute of limitations or latches too if you let the thing go long enough, it is unavailable, but that does not mean that the statute of limitation is ignored?

Mr. Stanley M. Lipnick: No, I do not think there is really from the -- in the context of this case, Your Honor, I do not think there is really a difference.

I -- between saying you cannot review it, unless you seek review within 30 days of the time when its issue or saying you cannot review it at all.

I think the question still is, if Congress passes a law which says you must seek review within 30 days or not at all, do they contemplate by the term review or by that provision, do they contemplate foreclosing the Federal Judiciary from any jurisdiction to inquire into the question of whether an administrative agency has committed an act which on its face is unlawful.

Justice William H. Rehnquist: Even though the attack of the administrative action come two or three years after the promulgation of the regulation?

Mr. Stanley M. Lipnick: Yes sir.

I think that limited inquiry is always open.

I think it is always open for us to say that we are being prosecuted for conduct which Congress did not make a crime.

Congress said you cannot violate an emission standard and if we cannot raise the question of whether or not this regulation is an emission standard, I think we are in the position of having the Sixth Circuit decision stand, which holds that we can be brought to trial and convicted for conduct which Congress did not make a crime.

I think we are in the position, if the Sixth Circuit decision stands, I think we are in a position of having a rule which says that even though this agency was at the time in violation of its own continuing mandatory duty to promulgate the kind of regulation Congress told them to promulgate, an emission standard, nonetheless the Federal Courts are going to enforce the violation of law by the agency and they are going to do it by convicting my client of conduct which was not made a crime by Congress.

We think that is wrong and I do not think it matters whether our attack upon the agency's actions as being lawless on its face, comes two years or twenty years after the regulation is promulgated.

Justice William H. Rehnquist: Did the agency think this was an emission standard?

Mr. Stanley M. Lipnick: The agency gave it a title of emission standard.

I think the agency's position has not been entirely consistent as to whether it is or is not an emission standard and I am not certain that the agency has ever really squarely addressed that particular question.

I think the agency has as I understand them --

Justice John Paul Stevens: Well, you did not give them too much of a chance, did you? I mean, you could have gone to the agency?

Mr. Stanley M. Lipnick: We have gone to the agency in other proceeding sir.

Justice John Paul Stevens: But not this one?

Mr. Stanley M. Lipnick: Not this one, no sir.

Justice John Paul Stevens: And well in other proceedings has agency said that this was an emission standard?

Mr. Stanley M. Lipnick: No sir.

The agency has always taken the position that we are questioning the validity of the regulation, that the questioning its authority to issue the regulation and that the regulation is authorized.

I do not think they have ever to my knowledge focused on the question simply of whether or not it is an emission standard.

Chief Justice Warren E. Burger: We will resume there at 1 o' clock.

Mr. Stanley M. Lipnick: Thank you.

Chief Justice Warren E. Burger: Counsel we will ask you to yield while motion for admission is made because some sponsors failed to show this morning.

Mr. Weitzenfeld?

Argument of Weitzenfeld

Mr. Weitzenfeld: Mr. Chief Justice and may it please the Court.

I move the admission of James Heed Dow Jr. (Ph) and a Ronald T. Mitchell (Ph) both of the Virgin Islands.

I am satisfied that they posses the necessary qualifications.

Chief Justice Warren E. Burger: Your is motion is granted and Mr. Dow and Mr. Mitchell will be admitted.

The clerk will administer the oath, but before he does that let me extend to each one of you on behalf of the Court a warm welcome as the members of the bar report and officers of the Court.[Administering the Path by the clerk]

Chief Justice Warren E. Burger: You may proceed Mr. Lipnick.

Rebuttal of Stanley M. Lipnick

Mr. Stanley M. Lipnick: Mr. Chief Justice and may it please the Court.

Before the luncheon break, I recall I was asked whether the agency had ever itself considered the question of whether the work practice rule is an emission standard and I think I would like to expand upon my answer just briefly if I may.

I think the agency has always known work practice rule is not an emission standard.

On December 7, 1971, when it first published its proposed regulations in the Federal register, the following statement appears in the preamble to the proposed regulations at volume 36, page 23239 of the Federal register “because there is no suitable technique for sampling and analyzing asbestos in the ambient air or in emission gases, the standards are expressed as requirements for operation of specific control equipment or other equipment of comparable effectiveness or in situations where no control system is available as prohibitions on the use of asbestos.

When acceptable source of sampling and analytical methods are available and it is possible to delineate hazardous levels, these standards may be revised to require compliance with a measured allowable emission.”

On April 6, 1973, when the work practice regulation was first promulgated in final form, in the preamble to that publication at volume 38, page 8820 of the Federal register, the agency stated “it is not practicable at this time to establish allowable numerical concentrations for mass emission limits for asbestos.”

And then in the third column of the same page “the means of control used are limitations on visible emissions with an option in some cases to use designated control equipment, requirements that certain procedures be followed and prohibitions on the use of certain materials or certain operations.

These means of control are required because of the impossibility at this time of prescribing and enforcing allowable numerical concentrations or mass emission limitations known to provide an ample margin of safety.”

Chief Justice Warren E. Burger: Does that appear in any thing you have filed here, what you have just read?

Mr. Stanley M. Lipnick: I am certain that the final publication is cited in the brief.

I am also certain that the quotation is not sir.

Chief Justice Warren E. Burger: The quotation is not there, but the citation is --

Mr. Stanley M. Lipnick: I am certain that the federal register publication -- this is the final regulation as published.

I think the only other thing I need to say if the Court please is that the the only inquiry which is necessary here to ascertain that the administrator did not comply with Section 112 (b) of the Act is whether or not the regulation on its face is an emission standard and the result of that inquiry shows that my client is indeed being prosecuted for something Congress did not make criminal.

And we believe that that is simply wrong and that it should be reversed.

The portion of the federal register at which the final regulation is promulgated Mr. Chief Justice, is cited at page 5 of our brief and the regulation itself is quoted, thank you.

Chief Justice Warren E. Burger: Very well.

Mr. Easterbrook.

Argument of Frank H. Easterbrook

Mr. Frank H. Easterbrook: Mr. Chief Justice and may it please the Court.

The central statutory provision at issue here is Section 307 (b) of the Clean Air Act amendments.

That Section provides that the District of Columbia Circuit has exclusive jurisdiction to any challenge of the action of the administrator of the EPA in promulgating any emission standard and that review may be had in that Court on any petition filed within 30 days of the promulgation or thereafter, if new grounds arise after the thirtieth day.

Section 307 (b) (2) provides “action of the administrator with respect to which review could have been obtained” under the first paragraph shall not be subject to Judicial review in civil or criminal proceedings for enforcement.

That Statute is abundantly clear.

The challenge petitioner now raises to the validity of the emission standard promulgated by the administrator --

Justice Byron R. White: Just so I have got a clear, in -- is there any restriction on what, what issues could be raised in the Court of Appeals for the District of Columbia?

Mr. Frank H. Easterbrook: There is none Your Honor.

The district --

Justice Byron R. White: Whether you have gone with -- to the administrator with them or not?

Mr. Frank H. Easterbrook: Well, the district District of Columbia Circuit requires that the claims have been raised, statutory --

Justice Byron R. White: So that if you have not presented a particular claim to the agencies, the Court would not hear it?

Mr. Frank H. Easterbrook: There are sometimes problems of exhaustion of administrative remedies, Your Honor, that would go with claims of this sort.

If it were a claim being raised for the first time in the District of Columbia Circuit that the administrator had never had the chance to consider, it might be appropriate not to consider it or it might be appropriate under District of Columbia Circuit --

Justice Byron R. White: What would you think about -- what would you think about a coverage question -- well I will just say that the regulation just simply is not authorized by the Statute, that must have been presented to the administrator before the Court will hear it?

Mr. Frank H. Easterbrook: No Your Honor, I think the pure coverage case could be raised at any time in the DC, not at any time, but it could be raised in the DC Circuit.

Justice Byron R. White: And without ever having been presented to the administrator?

Mr. Frank H. Easterbrook: Yes, Your Honor.

Justice Byron R. White: What about a constitutional challenge to the underlying Statute?

Mr. Frank H. Easterbrook: No, the result of that would be the same since the administrator lacks the authority to declare the underlying statute on the Constitution.

Justice Byron R. White: And what about the constitutionality of a regulation?

Mr. Frank H. Easterbrook: I think that would depend in part on the nature of the challenge to the regulation.

If the nature of the challenge was such that a regulation easily could have been drafted consistent with the Protestant's view of constitutionality that, that kind of claim should be presented first to the administrator so that he would have a chance to draft a regulation that in the view of whether it challenges its constitutional.

If they were a constitutional claim in this case that rational would not apply because the administrator has already considered whether it is practicalable to promulgate a regulation in some other form and we have the administrator's judgment on that.

There would be no point in asking for his judgment again.

Justice William H. Rehnquist: How do you work that all in a 30 day time limit, all the administrative exhaustion?

Mr. Frank H. Easterbrook: The 30 day time limit commences to run Mr. Justice Rehnquist, only after the final promulgation of the regulation.

These regulations are promulgated after notice and comment rule making.

In this case the initial notice promulgate and publication came in 1971 and there was a process of more than a year before the final promulgation.

The 30 days commenced to run only after the final promulgation of the regulation.

Justice William H. Rehnquist: Okay, well supposing that person in question gets a copy of the notice or advice, but does not do anything then, and the regulation becomes final and then he seeks to challenge it in the Court of Appeals for the District of Columbia Circuit within 30 days, is he debarred because he did not challenge it before the agency?

Mr. Frank H. Easterbrook: If he not only did not challenge it before the agency, but no one challenged it before the agency on those grounds, then consistent with the rationale that I gave an answer to Mr. Justice White's question, I think he would then be barred in the DC Circuit.

The statute itself as I have said is quite clear and the contention that petitioner now raises is one that he could have raised in the District of Columbia circuit under the answer that I gave to Mr. Justice White.

Indeed petitioner conceded in the District Court a concession that appears at page 85 of the Court of Appeals' Appendix that he could have raised in the District of Columbia Circuit the contentions he now raises, because the challenge could have been raised in that court.

Justice John Paul Stevens: Mr. Easterbrook may I stop you there?

Could he have raised it on the theory that it was an emission standard under Section 112 within the meaning of 307 (b) (1)?

Mr. Frank H. Easterbrook: I am sorry Your Honor, I do not understand the question.

Justice John Paul Stevens: Well, the plain language of the statute controls, (b) (2) says that you are barred unless you file the petition for review as authorized by (b) (1), (b)(1) authorizes a petition for review of the -- the action that administrator in promulgating any admission standard.

So for us to conclude that he should have followed that procedure need we not decide that it was not an emission standard?

Mr. Frank H. Easterbrook: I believe not Your Honor and I can answer that in several respects.

Section (b) (2) says that review is barred on any question that could have been reviewed under (b) (1).

Justice John Paul Stevens: Correct.

Mr. Frank H. Easterbrook: So for in order, in order for petitioner to prevail here, you would have to first conclude that his contentions are ones that that district of Columbia's Circuit could not have considered on a petition being filed under (b) (1).

Justice John Paul Stevens: Correct.

Mr. Frank H. Easterbrook: The District Of Columbia Circuit has held in the Ohato Case which is cited in the footnote at page 15 of our brief that it may consider challenges similar to the challenge that issues here, that is a contention that the regulation was on its face is not the kind of thing the Statute authorized.

Under that rationale this was a challenge, review of which could have been had in the DC circuit, and of which review therefore may not had now under (b) (2), I can set out a couple of reasons for that.

The argument that you cannot, that you can now review in criminal proceeding the contention that there is no emission standard, would essentially make the question of jurisdiction turn on the merits, that is under petitioner's view, review would be precluded only after the District Court had already given the regulation for review.

Justice William H. Rehnquist: Yes, but under your view, if the administrator promulgates something called an emission standard and the text of it is that every wrecker shall pay $500 a month into a conservation fund, he is bound to go to the Court of Appeals, no matter how far away from the legislative intent that was?

Mr. Frank H. Easterbrook: Mr. Justice Rehnquist, I do not think that we need to make an argument that extreme in order to prevail here.

Let me suggest the two kinds of inquiries that I think the District Court should ask.

The first kind of inquiry is whether the administrator's regulation purports to rely on Section 112, that is whether he says that this is an emission standard.

Second kind of question the District Court might ask and properly so, is whether the administrator's regulation purports to control the emission of the hazardous substance, since Section 112 is a Section dealing with release of hazardous substances into the air.

The District Court if it answers those questions affirmatively, that is if it says the administrator says he is relied Section 112 and this regulation in fact controls the emission of hazardous substances into the air should conclude its inquiry at that point.

There are of course, a myriad of ways in which the administrator might go about controlling those kinds of emissions.

The question whether he has controlled emissions in the very way that the statute contemplated is we think exactly the kind of question Congress had in mind when it required review of that thing to come into the District of Columbia circuit.

Justice Byron R. White: But even if the District Court asked those questions and answers them no, this is not kind of a -- he does not even purport to be acting under the Section, that question still could have been raised in the Court of Appeals under your argument?

Mr. Frank H. Easterbrook: When I answered Mr. Rehnquist by saying that we did not have to go as far as his hypothetical, I did not mean to say that we think it would be inappropriate for the District of Columbia Circuit to review it.

Ultimately --

Justice Byron R. White: There are some questions that can be raised later despite Section 112?

Mr. Frank H. Easterbrook: I think, no the question -- the suggestion that I made to Mr. Justice Rehnquist was I think the same kind of question that the District of Columbia Circuit would ask itself when someone filed a petition for review in the District of Columbia Circuit.

That is to say before that Court could exercise its statutory review authority, it would have to decide whether the claim that was being made before it was a challenge to something under Section 112, pardon.

Justice Byron R. White: If it is wrong enough we will not review it?

Mr. Frank H. Easterbrook: Pardon?

Justice Byron R. White: If it is wrong enough we will not review it?

Mr. Frank H. Easterbrook: Not if it is wrong enough, but if it is not -- not even purported to be promulgated under this Section.

Justice Byron R. White: So we just had it stand in District of Columbia Circuit?

Mr. Frank H. Easterbrook: The District of Columbia Circuit's answer I think would be that this could something for an original action in the District Court.

In similar problems before this Court last year in the Depart three Depart cases (Ph) involving the question whether the Court of Appeals or the District Court would have review of certain regulations promulgated by the administrator.

Before you could decide that question you had to decide what kind of regulations they were.

I think the District of Columbia Circuit must ask the same kind of question when someone files a petition for review with it.

It says this is a regulation promulgated by the administrator.

Is it the kind of thing described in Section 307 (b) (1)?

If so it would review it there.

If not it must dismiss the petition for review and the two criteria that I gave in answer to Mr. Justice Rehnquist are I believe the criteria that that Court should ask.

I think if you ask those questions here, the regulation satisfies those criteria, and therefore, it was one that could have been reviewed in the District of Columbia Circuit.

Let me go back if I can, briefly to discuss the legislative history of Section 307 (b) because I believe that sheds considerable light on the kinds of things that must be reviewed in the District of Columbia Circuit.

Section 307 (b) originated in the Senate which adopted the limitation on judicial review as an alternative according to the Senate Report at page 41 to an absolute preclusion.

The reason why it was considering something as extreme as absolute preclusion of judicial review was that it wanted “to maintain the integrity of the time sequences provided throughout the Act.”

Each of the steps in promulgation of regulations and review of regulations is a precondition to something else.

In this case a precondition to compliance, but one of the necessities of compliance is to have a valid regulation.

And so Congress centralized review in a single forum, the District of Columbia Circuit, with a very short time limitation for review in order to achieve two important objectives.

The first of those objectives was to make sure that any review would produce uniform results across the nation.

All competitors in the industry would be subjected to the same standards rather than different standards that might be imposed by different judges.

And second it wanted to be sure that if in fact the regulation was invalid, the invalidity would be detected quickly, so that the administrator could then promulgate a new ands valid regulation.

That required a time limitation on judicial review.

Congress set out to give the regulations after the period for review had expired the same unquestioned authority as the Statute itself.

Section 307 accomplish that end, and the position of petitioner which amounts to saying that the regulations are always open to challenge would frustrate that end.

We understand petitioner to make three kinds of arguments.

First petitioner argues that any regulation maybe attacked on its face at anytime.

Second, and this a variation of the first argument that I have already discussed in part, petitioner contents that Section 307 (b) applies only to regulations that are in fact end in law, emission standards.

The third contention which petitioner makes only implicitly, but which the District Court made more clearly is that Section 307 applies only to attacks on the procedure by which the regulations promulgated and not the contentions that the substance of the regulation is unauthorized by Statute.

None of these arguments are correct.

I will take them up in turn.

The first argument that regulations maybe attacked on their face at anytime is inconsistent with the progeny of the Yakus case.

In the wake of Yakus which upheld against Constitutional attack, a statute very similar to Section 307 (b), this Court applied that rule of preclusion in a number of cases attacking regulations as inconsistent on their face with the Statute authorizing the promulgation of price regulations.

These cases are collected at page 24 of our brief.

If there are any reason to distinguish between a tax on the face of the regulation and the tax on the regulations applied and Section 307 makes no such distinction, it will be more appropriate to bar facial attacks.

After all facial defects are known the instant a regulation is promulgated, whereas attacks on the regulation as applied in particular cases may not come to rise until later, and therefore, it maybe difficult to protest within 30 days, things that are unknown at the promulgation.

Petitioner contents, however, that Leedom against Kyne supports the position that a person always may challenge a regulation as facially inconsistent with the authorizing statute.

But this Court has pointed out in later cases, most recently last June in Briscoe against Bell, footnote 13, that Leedom did not establish that principle.

Leedom was a case in which judicial review was conditioned on a final order by the National Labor Relations Board.

It was necessary to construe that ambiguous term in order to determine when review was appropriate.

If in Leedom that term had not been construed to make review available, it might never have been available, but those problems do not arise here.

Justice Potter Stewart: But did Leedom not involve a certification of a bargaining unit?

Mr. Frank H. Easterbrook: Of a bargaining unit.

Justice Potter Stewart: And is not review always available on an ADA-5 violation for refusal of the bargain?

Mr. Frank H. Easterbrook: It would be available only if the employer then refuse to bargain.

Justice Potter Stewart: Right and that is the normal way in which it is reviewable, it is reviewable thousands of times a year by the Board, is not it?

Mr. Frank H. Easterbrook: Yes it is, but in Leedom the question was inclusion of particular employees in the bargaining unit and the employer and the employee, the employer and the union were then going to bargain, there never would have been any ADA-5 violation in Leedom.

The ADA-5 violation can come about only if the employer refuses --

Justice Potter Stewart: Refuses to bargain and he can refuse to bargain because he says this is not the appropriate bargaining?

Mr. Frank H. Easterbrook: That is right, but that was not happen in Leedom?

Justice Potter Stewart: It did not happen because Leedom said that an appeal was allowable before it happened?

Mr. Frank H. Easterbrook: But the, my point Mr. Justice Stewart was that there was going to be no review in Leedom because the employer had already said that he was willing to bargain so it was case in which there could be no effective review at all.

That was the need to resolve the ambiguity.

Later cases such as Brotherhood of Railway Trainmen have construed Leedom rather narrowly and in any event Leedom did not involve or review preclusion Statute like Section 307 nor did it involve what 307 involves.

It is not a complete preclusion of review.

This is statute requiring contentions to be made in a particular court at a particular time.

It does not bar Adamo from challenging the regulation.

Justice William H. Rehnquist: Well, if there is any practically, you mentioned the word practical a couple sentences ago and if you take a record out in 2000 miles away from Washington, that does not read the Federal register and so far has a very small business.

This kind of a Statute really practically bars him from challenging it, does it not?

Mr. Frank H. Easterbrook: I do not think that is so Your Honor.

There are a number of means that small contractors have to address these kinds of problems.

One is to form a trade association which the National Association of Demolition Contractors is, which acts effectively as the agent of all of of the small demolition contractors for reading the Federal register and advising them of their interests and in some cases including a subsequent challenge to the regulation at issue here, the National Association of Demolition Contractors has filed a petition for judicial review acting to protect the interests of its members.

That kind of collective action is always available to small contractors, but the second answer is that, I think that it is appropriate for Congress to require small contractors to read the Federal register.

When contractors are dealing as they are here with a material like asbestos which is one of the most potent cancer causing agents known, it is not unreasonable for Congress to pass a Statute which tells those who may cause the deaths of innocent people to read the Federal register to protect their interests.

Justice William H. Rehnquist: Well, you know I may agree with that and perhaps all the court may agree with that, but I think you should delete the word practical then from your argument because as a practical matter many, many small businessmen would be precluded from reviewing this sort of thing?

Mr. Frank H. Easterbrook: I did not want to imply that all of them would read the Federal register and I retract that kind of suggestion.

Second argument which we have discussed briefly already is that Section 307 applies only to emission standards, and therefore, you have to decide first whether something is in emission standard in order to know whether review is precluded in the District Court.

I think the answer to that as I said to you earlier Mr. Justice Stevens is that that makes jurisdiction turn on the merits and it makes it turn on the merits in a way that would make Section 307 (b) completely ineffective.

One of the things that can be done to challenge regulations of this sort is to contend that they are not only not emission standards, but they are not emission standards because they are arbitrary capricious and abusive discretion of the like.

It is clear that Congress did not authorize the administrator of the EPA to be arbitrary or to be capricious or to abuse his discretion or to do something that on its face is unreasonable.

All of those things are the reasons why the administrator has acted unlawfully, and therefore, has not promulgated the kind of emission standard that the Statute contemplated.

But if those kinds of contentions are open, then Section 307 (b) means nothing because those are surely at the core of what Congress intended to preclude.

As I think our contention is that rather than regulating emissions of asbestos in one way by requiring it to be vetted, it should have regulated emissions of asbestos in some other way that is by setting numerical standards.

All of those attacks on how the administrator ought to go about the business of regulating asbestos emission are the kinds of things that Congress intended to be reviewed in the District of Columbia Circuit, and that therefore, cannot be reviewed now.

Justice John Paul Stevens: But Mr. Easterbrook, there is a rather clear difference between what the Statute says in the category you describe arbitrary and capricious and the like.

It is quite clear that the statute purports to preclude review because you are dealing with an emission standard albeit one that is arbitrary or erroneous, but if your question is whether or not it is an emission standard, the Statute, it is true that you have to decide the merits to decide the jurisdiction issue, but I am not sure that is an answer?

Mr. Frank H. Easterbrook: In part, in part I think we may have became engaged in the semantic exercise.

My point and perhaps an excessively semantic one was that it is always possible to say that because the regulation was arbitrary and capricious it was not the kind of emission standard that Congress contemplated at all.

Ultimately what petitioner is arguing is that what the administrator did is not the kind of emission standard the Congress contemplated.

Petitioner agrees I believe that Congress intended the administrator to regulate asbestos and to control the amount of asbestos that can come of into the air.

What this dispute is about is how best the administrator should do that and whether Congress authorized him to do it in a particular way and although you can, it is true always plays that as a question as to whether there is any emission standard at all.

It is equally reasonable to phrase it as the question whether the emission standard that the administrator promulgated was the kind of thing that Congress had in mind.

Chief Justice Warren E. Burger: Would any of your arguments be any different Mr. Easterbrook if the time period was ten days?

Mr. Frank H. Easterbrook: Those kinds of arguments would go Mr Chief Justice to whether the procedures for review established an adequate forum in which it could be reviewed.

We understand petitioner's answer to Mr Justice White, he is not contending that the opportunity for review was in fact inadequate.

Petitioner has said that he is going to reserve these for disposition of the trial.

We believe that they cannot be so reserved under Rule 12 (b) of rules of Criminal Procedure.

But in any event petitioner is not making any argument that the opportunity for review in the District of Columbia Circuit was inadequate and I think the ten day review would pose more difficult questions, but I think I ought to point out that Congress had been sensitive to these kinds of concerns.

The most recent legislation which the President signed in August and which we refer to in the first footnote of our supplemental brief extends from 30 to 60 days, the time within which to challenge in the provision of District of Columbia Circuit.

So Congress has been very careful not to cut off necessary opportunities to receive and study the regulation before deciding whether to object.

Unknown Speaker: Do you know any other favorable statute to have a 30 day limitation?

Mr. Frank H. Easterbrook: Your Honor, there are a number of such statutes which are collected in one of the footnotes to our brief.

The Federal Trade Commission and the Securities and Exchange Commission statutes contain 30 day limitations and in both of those cases violation of the rules can be criminal, can lead to criminal prosecution.

Chief Justice Warren E. Burger: (Voice Overlap) 10 day limit on criminal appeals?

Mr. Frank H. Easterbrook: Yes, there is I believe Your Honor.

Chief Justice Warren E. Burger: Because everyone in a criminal case is quite variable conditions of the time the 10-days begins to run?

Mr. Frank H. Easterbrook: 10 days would sometimes get exceedingly close and there might be a possibility of mail delay or perhaps negligence in delivering the mail is subject to merely a case.

Unknown Speaker: Mr. Easterbrook assume for the moment that the statute in addition to authorizing the administrator to promulgate emission standards contained an exception, the exceptions of which read quite explicitly that the administrator would have no authority to promulgate work rule and let us assume further that the administrator went ahead and promulgated what fairly could be characterized as a work rule.

Assume further there have been no appeal within a 30 day period, will that present a different case?

Mr. Frank H. Easterbrook: No Your Honor it would not.

It would be the position of the United States if that complaint should be raised within 30 days in the District of Columbia Circuit.

The question one again national applicability and one that ought to be resolved very quickly is whether this is or is not the kind of thing the Congress forbade.

Unknown Speaker: Even though it is perfectly clear that the administrator has violated the Act of Congress?

Mr. Frank H. Easterbrook: I believe so Your Honor.

That should be resolved in the DC Circuit.

The final ground for challenging, for arguing that there is jurisdiction in the District Court was one raised by the District Court itself which is that Section 307 (b) (1) refers only to the action of the administrator “in promulgating” in emission standard.

The District Court thought that this meant that it referred only to procedural flaws and not to substantive flaws.

The answer to that of course is that if 307 (b) (1) is interpreted in that way the evident desire of Congress is again defeated because it is impossible to have unified and prompt review of the substitute rules.

Indeed if the District Court were correct, the District of Columbia Circuit would have absolutely no authority to review the substantive portions of the objection, but the District of Columbia Circuit has held that it does have such authority and we think rightly so.

Petitioner's alternate argument is simply that it is unfair to foreclose its attack on the regulations.

We do not see the unfairness of which petitioner protests.

Public regulatory offenses of which this is one are often strict liability offenses, that is criminal sanctions can be imposed without any form of mens rea.

The statute at issue here does not make violation of the regulation a strict liability offense.

Emission in violation of a regulation is criminal only if done knowingly, but what it does require is that persons read the federal register at the their peril or obtain someone else to do that for them.

It is a standard --

Chief Justice Warren E. Burger: I would not agree that you mean failure to read and failure to have it available?

Mr. Frank H. Easterbrook: Find out what is going on in Washington that might effect their interests and take care of them.

Chief Justice Warren E. Burger: Quite a large undertaking, do you not agree?

Mr. Frank H. Easterbrook: It is a large undertaking and that I think is one of the reasons for the formation of the National Association of Demolition Contractors.

[Laughter] But my point is that it is not unfair for Congress to require members of the industry to undertake that kind of project to understand and protect their own interest within a period of time.

Petitioner or someone acting on its behalf have 30-days within which to file a petition for review and the statute does provide that if any reasons arise later that would be good grounds for review, they may be raised later.

Statute is simply a plan that allocates judicial review to a particular court at a particular time and we believe it should be respected.

I would like to make one final point in answer to Mr Justice Brennan's first question to Mr. Lipnick.

The case is still alive on Mr. Justice Brennan, even though the statute has been amended because the Acts at issue here took place before the amendment.

This is of criminal enforcement proceeding and the ex post facto clause would prohibit the application of 1977 amendments to this case.

Assuming that the 1977 amendments changed the law, it is our position that they did not change the law and the legislative history of those amendments indicate that the Congress was simply clarifying authority the administrator already possessed, but if in fact the petitioner is right that the 1977 statute -- that the 1970 statute did not authorize this regulation, this kind of prosecution would not assisted by the 1977 amendments.

Justice Potter Stewart: Well, you said it did not change the law when it says that where is the statute now, not the legislative history, the August 1977 statute, talks about when it is not being feasible to prescribe an emission standard, the administrator may instead promulgate work practice standard.

That sounds like they are two different animals, does it not?

Mr. Frank H. Easterbrook: It does Mr Justice Stewart, we just like on footnote 2, two pages over there.

Justice Potter Stewart: Yes I know, but by referring to the legislative history?

Mr. Frank H. Easterbrook: By referring to the legislative history, we think it is clear from the legislative history that the reason Congress addressed them as two different animals in the statute was to restrict the administrator's authority to use work practices instead of numerical limitations.

Justice Potter Stewart: No, it says I have left some language out if you know, design equipment, work practice or operational standards, what we are involved with here is a work practice standard?

Mr. Frank H. Easterbrook: Yes Your Honor.

Justice Potter Stewart: It is not very exclusive?

Mr. Frank H. Easterbrook: It is not ,but I think what Congress had in mind by giving them different names was to restrict, was to prefer one --

Justice Potter Stewart: So it indicates they are different things, if you have to call them by different names, does it not?

Mr. Frank H. Easterbrook: If you want to achieve, if you want to say that the administrator must prefer numerical limits to work practice limitations then I think you have call them by different names, but the requirement that the administrator prefer one to the other is a new requirement that we think was not present in the 1970 statute.

Thank you very much.

Justice John Paul Stevens: May I ask just one question about the new statute that I do not, it may be clear from the text, but I am not sure, that the statute, did the Congress also amend 307 (b) at the same time to make it clear that review of the work practice rule would be in the Court of Appeals?

Mr. Frank H. Easterbrook: It did not amend that in 307 (b).

It still referred 307 (b) (1), still refers to emission standards promulgated by Section 112.

Justice John Paul Stevens: Thank you.

Justice William H. Rehnquist: Where do you now review work product, work practice standards?

Mr. Frank H. Easterbrook: They are treated as emission standards promulgated under Section 112 and reviewed under District of Columbia Circuit.

Justice William H. Rehnquist: By what authority?

Mr. Frank H. Easterbrook: Under section307 (b) (1).

Justice William H. Rehnquist: Well, that is the most circular thing I ever heard of?

Mr. Frank H. Easterbrook: The statute is not model of legislative draftsmen ship Mr Justice Rehnquist.

Chief Justice Warren E. Burger: We have discovered that.

Mr. Lipnick?

Rebuttal of Stanley M. Lipnick

Mr. Stanley M. Lipnick: Mr. Chief Justice, may it please the Court.

I have only a few brief observations.

First the National Association of Demolishing Contractors which suddenly seems to have backed in as a party to this case was in fact first organized within a very few months previous to the promulgation of the work practice regulation.

It is true that the National Association of Demolishing Contractors now undertakes certain legal activities which might be described as done jointly for its members.

It is also true that, that legal work was undertaken in response to the very problem, which underlies this very case which is that small businessmen do not read ten and twenty thousand pages of fine print of the federal register every year and they particularly do not do it in 30 days and I am not aware of any Act of Congress which says that they have to do so.

I think a reference was made to the notice -- provision of the -- to the notice proceeding of the administrator from the standpoint of publishing a proposed regulation for comment.

I am not sure that my client Adamo Wrecking Company knew about the proposed regulation, either.

I am not sure that any wrecking company knew about it.

I am sure that anybody picking it up to read it, would find on the very first page, 23239 of volume 36 of the federal register “the sources covered in the asbestos standard are mining, milling, spraying and manufacturing.”

I think it does --

Justice Byron R. White: Can I ask you in the criminal enforcement proceeding, is there some -- what is the state of knowledge by the defendant supposed to be for liability?

Mr. Stanley M. Lipnick: You mean as a matter of law?

As a matter of law sir, I believe under the Boyce Motor Lines case, we have to be shown to have knowledge of the facts which would constitute of violation of the law.

I take that to mean we have to know that the material that we are dealing with is in fact friable asbestos as defined in the regulation and that we must also know that whatever it is, we are proved to have done would in fact cause an emission of that material.

Justice Byron R. White: But, it is not required that you know anything about the law?

Mr. Stanley M. Lipnick: I believe that this Court's decision in Boyce Motor Lines in its progeny make it very clear that our knowledge of the law is absolutely irrelevant.

Justice Byron R. White: I just wondered if, under this statute it imposes any difference standard?

Mr. Stanley M. Lipnick: Not that I am aware of.

I think the word is just knowingly and I think that is the meaning of that term as well settled.

I think that it is obvious on the face of the statute that Congress did not tell the administrator of the Environmental Protection Agency, just go out and do whatever you think is best to control emissions of asbestos.

Congress for whatever reason, and as 1977 amendments teaches, Congress changed its mind and was persuaded that it should have done something differently in the first place.

Congress originally told the administrator to go out and promulgate emission standard.

I think even before the 1977 amendments, there is no way that this Act can be read as a whole and particularly the references in other Sections of the Act to emission standards, there is just no way that one can conclude that it is reasonable to think that an emission standard is now or ever could have been the same thing as a work practice rule.

They must be different things.

Justice William H. Rehnquist: What if Congress had passed a law that simply said anything labeled an emission standard by the administrator and not challenged within 30 days of its promulgation, shall be deemed written into the statute itself.

Would you have any case?

Mr. Stanley M. Lipnick: I think -- well the closest case I would have would be Thermotron from last year in which if I recall correctly the statute said, decision remanding to a State Court was absolutely unreviewable and this Court said that it was at least reviewable to ascertain that the trial judge had remanded on a ground specified as a basis for remand in the statute.

I think if we can have that much inquiry here, we can look to see whether this regulation is in fact an emission standard.

That is what we are charged with violating, an emission standard.

There is no Section of this Act which says or at least we are not -- there is a Section of this Act, 113 if I recall correctly.

which says that it is a crime to knowingly violate any regulation issued as part of a state implementation plan, under Section 110.

It is a crime to violate any regulation issued under Section 110 as a part of the State implementation plan.

The Section we are charged with violating does not say it is a crime to violate any regulation administrator might issue.

It only says it is a crime to violate an emission standard.

And if we can have the same scope of review as was accorded in the Herman Stortford (ph) case last year, I think that is enough to allow us to show that this regulation is not an emission standard, if indeed we are asking for review of the regulation.

In our view we still think that there is a substantial question whether we are asking for a ruling by the Trial Court on whether this indictment alleges an essential element of the crime.

Justice John Paul Stevens: Mr. Lipnick, if we should be persuaded that the jurisdictional issue depends on whether or not it is an emission standard, and you have to decide the merits to decide whether 307 (b) (2) applied.

In your view, should this Court decide that question or should we send it back to the Court of Appeals because the Court of Appeals did not decide that question as I remember?

Mr. Stanley M. Lipnick: In our view, I think the record is perfectly adequate to enable this Court to decide it, particularly with the 1977 amendments which I think make abundantly clear that a work practice rule just as not the same thing as an emission standard and with the government just today said that in the government's view, the 1977 amendments do not change the law.

I think that even without those facts, I think it is so clear, I think it is so clear on the face of the statute that this Court can decide the question in the interest of judicial economy, but with the addition to 1977 amendments and with the Government's position that 1977 amendments do not change anything.

I think that if this Court should conclude that there is jurisdiction, I do not see how there is any room for doubt as to the result and I think that if I recall correctly, in the Perkins case which is cited in the Government's brief, this Court indicated that where the record was adequate to unable this Court to decide a question which had not been decided by the Court of Appeals that it would do so in the interest of judicial economy and I would suggest that it would be appropriate in this case.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.