Atlas Copco, Inc. v. Environmental Protection Agency

No. 76-1354 (D.C. Cir. May 30, 1980)

The court denies petitioners' motion for rehearing of its earlier ruling, 9 ELR 20228, that it lacked jurisdiction to review certain regulations promulgated under the Noise Control Act of 1972. None of the regulatory provisions challenged in the rehearing petition were issued under § 6 of the Act, to which the court's jurisdiction under § 16(a) is limited.

Counsel for Petitioners
Richard H. Gimer
Santarelli & Gimer
2033 M St. NW, Suite 700, Washington DC 20036
(202) 466-6800

Counsel for Respondents
Jeffrey O. Cerar
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-0788

James W. Moorman, Ass't Attorney General; Patrick A. Mulloy
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2752

Before: ROBINSON, MacKINNON, and ROBB, Circuit Judges.

[10 ELR 20350]

ORDER

Upon consideration of petitioners' petition for rehearing, of petitioners' supplementary memorandum in support thereof, and of respondent's memorandum regarding jurisdiction for rehearing, it is

ORDERED, by the Court, that petitioners' aforesaid petition for rehearing is denied for the reasons set forth in the Opinion filed for the Court herein this date.

Per Curiam

SUPPLEMENTAL OPINION ON REHEARING

PER CURLAM: Petitioners in this case have sought judicial examination of regulations promulgated by the Environmental Protection Agency (EPA) pursuant to the Noise Control Act of 1972.¹ Much as in a companion case, Chrysler Corp. v. EPA,² we earlier found that we lack jurisdiction to review the rules here challenged because they were not issued under authority of Section 6 of the Act.³ Petitioners subsequently requested rehearing on four points, claiming that we did not reach them in our prior opinion. Despite our conviction that we had, and our belief that we were right in concluding that all four were beyond our statutory authority, we asked the parties to submit memoranda discussing jurisdiction. We have restudied the problem, and now reaffirm our previous determination that Congress has put the question petitioners pose beyond the purview of the courts.

In Chrysler, we held that Section 16(a) of the Act, which vests judicial review in the Court of Appeals for the District of Columbia Circuit, confers jurisdiction solely over administrative actions taken pursuant to Section 6 or either of two other provisions not here relevant.⁴ Section 6 itself relates only to noise emission standards, testing procedures and manufacturers' warranties.⁵ In our earlier opinion herein, we emphasized that "monitoring, inspection and enforcement regulations elude Section 16's narrow reach because they do not owe their existence to Section 6, and thus are beyond the scope of our authority."⁶ The issues identified in the petition for rehearing are all of that character, and thus we are without power to entertain them.

1. "Vicarious Liability"

Petitioners first challenge Section 204.5-6(b) of EPA's regulations,⁷ which they characterize as imposing vicarious liability upon manufacturers for misuse by distributors. This provision specifies that exemptions from noise standards will be deemed void ab initio if any term of condition of the exemption is breached, whether before or after distribution. As we noted in our prior opinion,⁸ it was promulgated to implement Section 10 of the Act, which authorizes issuance of product exemptions "upon such terms and conditions as [the Administrator] may find necessary to protect the public health or welfare."⁹ Under our holding in Chrysler, it is clear that the regulation falls outside of our jurisdiction.

Petitioners argue that, since in Chrysler we reached an issue of vicarious liability for noise emission violations, we must do so here as well. But the provision there at issue dealt with allocation of manufacturers' warranty liability, thus owing its existence to Section 6(d)(1) of the Act,¹⁰ and consequently was specifically within our jurisdiction as defined by Section 16(a).¹¹ On the other hand, as we have stated, the vicarious liability sought to be imposed by Section 204.5-6(b) of the regulations seeks no justification in Section 6 of the Act, and accordingly is not subject to review here.

2. Production Projections

Petitioners also challenged the validity of Section 204.53(b) of the regulations,¹² which authorizes the Administrator to require manufacturers to submit information on production schedules. In the early stages of the litigation here, the court issued a stay, pending review, of one portion of a request for such data.¹³ Petitioners now seek clarification on the possible continuing effect of the stay.

Ordinarily, of course, a stay issued pursuant to Federal [10 ELR 20351] Appellate Rule 8(a)¹⁴ dissolves automatically upon resolution of the appeal¹⁵ Here, moreover, as we noted in our previous opinion,¹⁶ we have no jurisdiction to review Section 204.53(b) because it was promulgated, not pursuant to Section 6, but under authority of Section 13,¹⁷ dealing with records, reports and information. Manifestly, then, the stay will not survive our final disposition of the case.

3. Submission Requirements

Petitioners next seek review of Section 204.56(a)(1) of the regulations, which empowers the Administrator to "require that any compressor tested or scheduled to be tested pursuant to these regulations . . . be submitted to him, at suchplace and time as he may designate, for the purpose of conducting tests. . . ."¹⁸ Since this rule interprets and implements the directive, in Section 13 of the Act, that manufacturers "make products coming off the assembly line . . . available for testing by the Administrator,"¹⁹ and does not concern the testing procedures to which Section 6 speaks, it is beyond the jurisdiction granted this court by the Act.

4. Percentage Requirements for Conformity

Finally, petitioners challenge Section 204.55-1 of the regulations, which requires that every new compressor comply with the applicable performance standards.²⁰ This rule is an enforcement provision promulgated pursuant to Section 10 of the Act.²¹ Consequently, our holding in Chrysler plainly leaves it outside the scope of judicial review.

In sum, we lack jurisdiction to resolve any of petitioners' current complaints. We so stated in our earlier opinion,²² and today we lay the matter fully to test. The petition for rehearing is accordingly

Denied.

1. Pub. L. No. 92-574, 86 Stat. 1234 (1972), 42 U.S.C. §§ 4901 et seq. (1976) [hereinafter cited as codified].

2. 195 U.S. App. D.C. 90, 600 F.2d 904 (1979).

3. Atlas Copco, Inc. v. EPA, No. 76-1354 (Apr. 9, 1979), at 3-4.

4. Chrysler Corp. v. EPA, supra note 2, 195 U.S. App. D.C. at 93, 600 F.2d at 907. The other two provisions relate to railroad and motor carrier noise emission standards. Id.

5. See 42 U.S.C. § 4905 (1976).

6. Atlas Copco, Inc. v. EPA, supra note 3, at 4 (footnote omitted).

7. 40 C.F.R. § 204.5-6(b) (1979).

8. Atlas Copco, Inc. v. EPA, supra note 3, at 4 n.17.

9. 42 U.S.C. § 4909 (1976).

10. 42 U.S.C. § 4905(d)(1) (1976); see Chrysler Corp. v. EPA, supra note 2, 195 U.S. App. D.C. at 103, 600 F.2d at 917.

11. 42 U.S.C. § 4915(a) (1976); see Chrysler Corp. v. EPA, supra note 2, 195 U.S. App. D.C. at 103, 600 F.2d at 917.

12. 40 C.F.R. § 204.53(b) (1979).

13. Atlas Copco, Inc. v. EPA, No. 76-1354 (D.C. Cir. Apr. 27, 1978) (order).

14. Fed. R. App. P. 8(a).

15. FTC v. Food Town Stores, Inc., 547 F.2d 247, 249 (4th Cir. 1977).

16. Atlas Copco, Inc. v. EPA, supra note 3, at 3 n.11, 4 n.17.

17. 42 U.S.C. § 4912 (1976).

18. 40 C.F.R. § 204.56(a)(1) (1979).

19. 42 U.S.C. § 4912(a)(3) (1976).

20. 40 C.F.R. § 204.55-1 (1979).

21. 42 U.S.C. § 4909 (1976); Atlas Copco, Inc. v. EPA, supra note 3, at 4 n.17; see Brief for Petitioners at 47; Brief for Respondents at 61; Reply Brief for Petitioners at 23.

22. Atlas Copco, Inc. v. EPA, supra note 3, at 3-4 & n.17.