Atlas Copco, Inc. v. Environmental Protection Agency

INC., Petitioners, al., COPCO, et ATLAS PROTECTION

ENVIRONMENTAL

AGENCY, Respondent.

No. 76-1354. Appeals, Court of

United States Circuit.

District of Columbia Feb.

Argued April

Decided Opinion Denial of

Supplemental

Rehearing May Justice, A. Mulloy, Atty., Dept,

Patrick brief, C., re- Washington, D. were on spondent. ROBINSON, MacKINNON

Before ROBB, Judges. Circuit filed SPOTTS- Opinion for Court ROBINSON, III, Judge. Circuit W. WOOD ROBINSON, III, Cir- W. SPOTTSWOOD Judge: cuit con- Petitioners, manufacturing eleven majority of the producing great cerns annually in sold portable compressors air States,2 us for review are before the United the Adminis- regulations promulgated Protection the Environmental trator pursuant (EPA) purportedly Agency regula- 1972.3 The Noise Control Act of stan- issue noise emission prescribe tions at enforcement and establish and dards compressors new procedures portable for commerce.4 The into interstate introduced facets of attack numerous manufacturers program regulatory the Administrator’s statutory and consti- grounds, both various tutional in character. requires

The Act pollution noise spread control federal maxi- fixing through regulations designated levels for mum noise emission C., Grimer, Washington, D. Richard H. congression- In execution of this products.5 petitioners. published a mandate, al noise,” including Cerar, “major sources of Jeffrey Atty., O. Environmental list C., set compressors,7 with air Washington, portable D. thereon Agency, Protection Counsel, products.8 In Frick, for these whom emission standards G. William General levels, sound Agency, permissible James Environmental Protection addition Gen., elaborate Moorman, regulations establish an Acting Atty. W. Asst. Inc.; regula- pt. Copco, Chicago 4. 40 Citation C.F.R. Petitioners are Atlas Industries, Company; source. Pneumatic Tool Inc., Dresser tions hereinafter is to that Division; Compa- Le Roi Gardner-Denver ny; Ingersoll-Rand Jaegar Company; The Ma- 2(b), 6(a)-(c), §§ 5. Noise Act Control Joy Manufacturing Company; Company; chine 4901(b), 4905(a)-(c) §§ U.S.C. Division, Quincy Compressor Colt Industries Schramm, Inc.; Operating Corporation; Gor- Fed.Reg. 22297 Company, Worthington don Smith & Inc. and Compressors, Inc. Id. at 22298-22299. 2. Brief for Petitioners in 40 Fed.Reg. codified pt. 204 Pub.L.No.92-574, (1972), 42 86 Stat. 1234 seq. et §§ 16’s narrow ment elude Section major share of imposes program,9 testing on the their exist- they do not owe responsibility reach because manufacturer,10 monitoring,11 inspec- 6,17 beyond and thus are ence to Section procedures, which and enforcement13 tion complaints Other authority. of our conformity to ensure enable EPA officials however, focus on by petitioners, registered peti- levels. While emission required stemming Section testing regulations levels de- the sound do not contest tioners jurisdic- meet the 6(c)(1),18and therefore do do they regulations, creed 16. These prerequisites Section tional regulatory remaining features review.19 subjects of our noted above. scheme initially, We observe SCHEME I. THE REGULATORY many to consider jurisdiction that we lack To the ex petitioners pose. issues Act Control 6(c)(1) of the Noise Section Noise relevant, 16(a) of the tent Section to set decibel the Administrator authorizes “petition Act provides Control emissions.20 It also (dBA) limits on noise . review of action of necessary to “testing procedures sanctions or any standard promulgating in stan- with the emission assure Act . 6 . . .of this under section regulations The is- . . . .”21 dard power in Our may be filed” this Court.14 power by delegated sue effectuate this is, of Act claims under adjudicate procedures. a series of related erecting course, by limited correspondingly production testing phase primary The in today As we hold grant.15 terms of this in com- Prior to distribution verification.22 EPA,16 companion v. Chrysler Corporation merce, from each compressor23 enforce- one test case, and monitoring, inspection regulations, 204.55-10, monitoring inspection and and -8 17. The 40 204.57-1 §§ 9. C.F.R. 11, 12, promulgated (1977). testing requirement.30 annual applicable meets sampled population standards, emission and that forms is supplemented verification Production The foundation for the audit. cumulative auditing by EPA’s selective enforcement acceptance- compared with results are (SEA) Because of the limited program.31 particular for the pro- rejection of actual involved in amount rates established configuration” (ii) “compressor Displacement A basic 24. is the product (iii) Horsepower classification unit of a manufacturer’s lines, compressor comprised (iv) line. els, It is mod- rpm Full load series which are cooled, or identical in all material (6) Type g., cooling system, e. air respects regard specified parameters. with water cooled 204.51(d), (1977). Id. 204.55-3 §§ (7) Fan: (i) Diameter (1977). 25. Id. 204.55-2 § (ii) rpm Maximum fan (8) compressor (1977). The enclosure: 204.55-2(c)(2) 26. Id. § (i) Height, length, and width 204.55-2(c)(1)(ii) (1977). “category” 27. Id. A manufacturer, (ii) type, Acoustic material group compressor configura consists of a part number aspects tions that are identical in all with re (9) system (engine): The induction 204.51(e), gard specified parameters. Id. §§ (i) Natural (1977). (ii) Turbocharged (10) The muffler: 204.55-2(c)(2) (1977). 28. Id. § (i) Manufacturer 204.55-10(a) Id. § Section 204.55-3 (11) part number Manufacturer (1977) provides: (iii) Quantity of mufflers used (a) separate compressor configuration A 204.55-10(a) Id. determined shall be each combination of the following parameters: Id. § 204.57 (1) compressor type (screw, sliding The vane, etc.) regula 204.57-1(a)-(c) The compressor (2) stages Number of specify tions do under which the conditions (3) pressure (psi) Maximum an SEA can or will be made. (4) system compressor: Air intake (i) Number of filters (ii) 204.57-1(d) (1977). Type filters Id. § (5) engine system: The (i) cylinders configuration Number of See id. 204.57 V-8, (L-6, V-12) capable apply on in hand involved, technology a decision and is plan sampling proce- technology manufacturing proc in a ing The testing is made.35 further quality 41—annual reverification absence attempt impose an ess” is not dure change measures model unreasonable. assurance quality or control manufacturer; rather, merely its aim notice claim of insufficient Petitioners’ conformity manufactur- to audit requirement reverification the annual product.36 er’s premised rejected. argument Their failure, regu- proposed that the verification allegation event of an SEA an In the test- of a con- regulation required a third reverification imposition of lations authorize pa- the basic only batch when one of any figuration Upon rejection ing procedure. underwent modi- may require of identification the “Administrator rameters sequence,37 was ac- catego- arrangement Since this compressors of fication.42 or all provide pro- petitioners, they thereof did configuration subgroup ceptable ry, al- By petitioners distri- the time before comment.43 plant duced at that tested of the Administra- integration legedly The became aware bution in commerce.”38 mandating annual single in a testing phases results tor’s current these three exempted, providing testing in all instances unless testing scheme directed at period mechanism had ended and interested with an effective comment in- effectively were foreclosed ensuring product integrity. process. decisionmaking fluencing VERIFICATION II. PRODUCTION is, however, unsubstantiat- This scenario virtually is ad proposed regulation44 Petitioners’ first ed. regul promulgated. to that One finally verification identical dressed expressly ation,39 specific proposed the annual standards focus on section of pro verification of “[production testing requirement. They argue stated required at the configuration in its each mulgation ”45 . . . year. of each model opportu beginning form denied interested parties that the upon preamble the the noted nity meaningfully Similarly, to comment verify violated proposed, production course of action and thus “manufacturer Surely to this year Administrative model the next.”46 provisions the notice one with suffi- They provided petitioners that in information Procedure Act.40 also contend to proposals expressed production insight program into the light purpose cient annual rev- meaningful a manu comment on whether verify permit verification —“to no we find basis Consequently, control requisite facturer has the noise erification. by 204.57-8(a) (1977), permissi- amended as 35. The Administrator has established Id. § (1977). judging employed Fed.Reg. to ble failure levels pt. Appendix I SEA test results. See id. Thus, “passed” num- an SEA if the is 39. 40 C.F.R. failing compressors equal ber of is to or less acceptable, designated than the maximum as 553(c) (1976). 40. 5 rejected it is “failed” if while the number of compressors permissible exceeds failure the Fed.Reg. 2170 41. 41 rate. supra. 42. See note 29 Fed.Reg. 43. Brief for Petitioners at compressors A “batch” is a collection of desig category configuration, the same as Fed.Reg. request by nated in a test Administrator. the 204.51(j) (1977). Rejection sequence batch means re the number of that Id. at 38200. jected sequence batches is less than sequence acceptance number as determined Id. at 38189. 1(s) appropriate sampling plan. the (1977). Id. 204.5 supra. See note 35 which, process dis- course of year, Administrator a concluding for that the of the Administra- obeyed requirements this Absent might capability.50 well affect Moreover, given Act. this tive Procedure testing a the increas- program, continuous level, object agency to opportunity ing quality of undetected deterio- possibility com- petitioners cannot now be heard to hazard to the poses unnecessary ration an court the first time.47 plain in this for procedure Although environment. the SEA slippage, purpose uncover possibly could agree event can we in Nor control, need quality is not to ensure petitioners’ characterization of the annual requir- to requirement unjustifiable. upon By re as not be relied that end.51 verification reverification, reasonableness of annual is ing annual testing apparent program when the is performance to of a manu- is able check Production verifica entirety. in its viewed process with minimum production facturer’s tion, more, testing without involves actual added burden to the manufacturer. configuration.48 compressor per but one wholly consistent requirement This And, instances, testing many actual purpose with the announced op further limited the manufacturer’s of the control verification. Confirmation highest tion subject only to sound-emit and his abili- technology of a manufacturer ting configuration specified category in a in a manufac- ty apply technology result, compliance.49 examination for As a continuing a turing necessarily context is only compressors a small number of relative least, necessitating, periodic task produced undergo testing. to the total This but testing less burden- program; adequate process stage in a plan is but first some verification to assure environmental progressive testing attempts balance practicable;52 protection is not otherwise to mini testing need for with an effort model beginning year, and the of each imposed upon mize burden the concomitant certainly program places regulations, defined manufacturers under for responsibility testing them their suitable needed reexamina- time products. Moreover, own tion.53 should be noted waive empowered too, It must be that while recognized, upon re- testing requirement the annual initial verification is the foundation quest.54 Pertinent to the exercise of this scheme, it does no more than dem- discretion are the in effect standards onstrate that at time of performance years question, the model working capability manufacturer has the upon product based data for verification produce complying compressors. Petition- based previous performance on selec- years, ers’ argument periodic scrutiny of that testing, tive and the number capability is unwarranted fails to acknowl- enforcement edge production design changes variables in the type inherent of noise emission Ruckelshaus, infrequent testing 47. Portland Cement Ass’n v. 51. The use of SEA contem- 308, 327, plated by inadequate EPA also it an makes denied, cert. 417 U.S. substitute for annual reverification. 94 S.Ct. 41 L.Ed.2d 226 might testing Certainly adequate alternative required configuration reveri- supra substitute for the text See at notes 23-25. difficult, however, fication. to conceive It is any procedure less burdensome. 49. See text notes 27-28. at year” the manufactur- is defined as “Model example, a manu- For the wear and tear on production period Jan- er’s that includes annual time, year’s error facturer’s machines over a or uary year. If the manufac- of such calendar inevitably resulting from human involvement production period, turer the term has no annual process, the are variables year. refers to 204.- the calendar might upset the ca- manufacturer’s 51(c) (1977). pability parameters though even the basic configuration unchanged. remain Id. reported, options and the available to the new models.55 into the incorporated filed; annual reverifica- in the event an is test- agency for waiver of provision adds, tion, of individual at the discretion of the ing, when the circumstances he purpose. case-by-case indicate no useful on a basis. Ac- manufacturers Administrator it, serves to bolster by cordingly, argues will be served the Administrator testing scheme of the overall should be propriety any challenge to an SEA balancing in its context. viewed it is made. presented at the time judicial are well aware of We ENFORCEMENT III. SELECTIVE traditionally disdain accorded standardless AUDITS Ofttimes, regulations.61 necessity, out of Petitioners’ second is directed agencies delegations regulatory power pro- audit enforcement the selective way guidance of concrete offer little The manufacturers maintain that gram.56 goals. of stated accomplishment toward standardless, and regulation the SEA authorizations nonetheless imprecise Such arbitrary, because it does inherently thus assumption garner judicial sanction on which au- not indicate the conditions under its mandate agency, pursuant Dur- requested.57 testing may dit gaps will fill legislature, from the comment, ing period provided When through rulemaking process.62 spir- agreement, Administrator noted his supply necessary fails to agency it, least, with the manufactures’ continuing vagueness may be precision, audits should be conducted that selective judicial scrutiny.63 to withstand great too believing ground when there is only amply demon by petitioners Cases cited being are noncomplying compressors each, point.64 reviewing In strate commerce,58 regula- but the introduced into court was confronted with a corresponding tion as finalized contains no speci to achieve summoning parties covered facial restriction. however, objectives. guidelines, No fied the broad of his stat- Relying upon regulated were offered authority, insists utory against performance their could measure other threshold any that neither cause nor requirement end. A blanket the announced trigger required testing may before absence of an compliance in the compelling Indeed, only express statuto- ordered.59 control the factors considered indication of testing ry limitation on establishment vague. Even the ling impermissibly procedure necessary it to assure is that authority from rulemaking of broad grant standards.60 The compliance with emission imprecision. such Congress cannot excuse event urges also cry, hue and Despite petitioners’ itself questioned regulation does now does Rather, before us obligation. litigation he impose The criteria problem. such a says, merely procedure establishes the readily ascertaina making be followed EPA for SEA resultantly, regulations;65 which results will be ble from the request, pe- the method cited infra notes 63-64. 61. See cases (1977), 204.57 § infra notes 63-64. 62. See cases cited supra. 57. See note 32 EPA, See, Corp. g., v. 504 South Terminal e. 646, (1st 1974). F.2d 670 Cir. Fed.Reg. 58. 41 2167 1055, 199, Ruiz, S.Ct. 94 v. 415 U.S. Morton notes, of the 59. As the section 6 Corp. (1974); v. 270 South Terminal 39 L.Ed.2d unqualifiedly “testing proce- Act authorizes EPA, supra note 63. necessary compliance dures to assure with the Respondent emission standard.” Brief of 65. See 40 C.F.R. 204.57 4905(c)(1) (1976). 60. 42 Rather, objection appropriately is more claim that to in no titioners are to the by application which of adequate guidelines particular aimed at a they lack Instead, what against performances. it be reviewed measure their where can program, are the to regulated is unknown circum- backdrop particular of its own the test trigger that will an SEA circumstances find the Adminis- Accordingly, we stances. defi- examining this asserted request. In regulation sufficiently precise trator’s SEA audit nature ciency, attack, on its to withstand face carefully in mind. must be borne to separate review a pretermit further abuse, impugning application action requires further Imposition of an SEA or consummated.66 threatened testing the manufacturer so compliance by products’ of his that a valid assessment may standards with conformity applicable TESTING IV. CONTINUED the information thus obtained be made and sequence67 a fails In the that batch event prac- a agency. As may reported audit, the Adminis- a selective enforcement matter, functions as an this mechanism tical addi- of an possibility envisions trator oversight program. On

early stage of testing obligation. tional gathered of data from SEA basis rejection Ad- whether that such a results, provide is able to determine EPA or all Consequent- is that testing “may require further warranted. ministrator demanding in effect petitioners category, configuration what ly, compressors of defining a the circumstances plant is statement at that subgroup produced thereof process in mo- follow-up set the will in com- before distribution be tested tion. further imposition After this merce.” burden, may re- a manufacturer compel- We no perceive justification question on the hearing, only a but quest to this information. ling agency furnish properly was conducted whether the SEA ad- interests lie in legitimate Petitioners’ sequence for batch and whether the criteria knowledge vance of the standards argue Petitioners specif- rejection of the were met.69 judged, will scope ic under which EPA choose limitation on the conditions this resources to scrutinize evi- urge utilize its limited hearing arbitrary. They is law. Ad- degree issue—the important on the most dence estab- mittedly, express without standards im- order—is any resulting lishing guidelines, application of the precise un- from consideration permissibly excluded abuse, subject but this regulation regulation. this der The solu- any testing capability. is true of circumscription agree that We tion to the facial lies not a unreasonably re itself, unduly and complained for that program validity regu- hearing provided for potential not where the for abuse exists. stricts the EPA, supra prior promulgation Corp. premature 66. See South Terminal dures However, 63, stipulated hearing note be- at 670-671. amendment. argu- tween submission the briefs and oral supra. See note ment, regulation in accord with a final stipulation Fed.Reg. 61455 was issued. as amended Thus, argu- perhaps petitioners’ while Fed.Reg. ripe matter at the time ment on this was Originally, made no contested initiated, “[R]ipe- was it is now. review provision hearing. Following for a settlement question timing, peculiarly is the ness negotiations, propose agreed EPA an amend- at the situation now rather than the situation permit hearing ment to 204.57-8 that would Region- govern.” time of [initiation] questions on the limited noted in text. Conse- Cases, Reorganization U.S. Rail Act al Administrator, brief, initially quently, the in his 42 L.Ed.2d S.Ct. ripeness petitioners’ argu- raised defense Valeo, (1974); Buckley v. 424 U.S. see also Respondents ment on this Brief for matter. 96 S.Ct. 46 L.Ed.2d position The was 25-26. Administrator’s that testing proce- review of the entire continuum of

467 regulation, contemplates due which further not decide whether We need lation. hearing, requires discretionary or the Act as to whether process determination his conferred one on Administrator has failing in the con- compressors or all” “any Nevertheless, having afforded accord. testing.72 own undergo more figuration must important inquiry hearing procedure, then, a fur- evidence on whether Clearly, may arbitrari- whether Administrator is appropriate, is and if so ther order we think the answer its ly scope, limit is compressors, which relevant as to gen- Courts have negative. be in the persuasive weight in the exer- be of “may reposed recognized the discretion erally So, ab- of discretion.”73 in the cise [that] whether deciding when agencies it comes this blan- justification, supporting sence of particular of evi- permit the introduction unreasonable, evidentiary is ket exclusion discretion, That how- hearing.70 at a dence it now reads. and cannot stand as ever, is not unbridled: important safeguards of most One V. COMPLIANCE COSTS rights litigants ... of the an proceedings before administrative The final reviewable discretion, it with agency vested primarily appli an to us involves presented cannot exclude consideration rightly found in Section cation mandate relevant to its facts circumstances into 6(c)(1)74 regulations take —that upon due consideration inquiry which se- account cost of —to weight in the exercise may persuasive be Peti- program.75 enforcement audit lective discretion.71 data say that tioners his estimate of SEA Administrator based contends inadequate permit impact are economic only precondi is the since failure of an SEA provision. Specifical- compliance with that regula subsequent testing tion to under the “open- manufacturers claim that the tion, ly, the hearing it is that the encom sufficient ” not, strategy’ ‘enforcement found This ended pass that issue alone. however, congruous with the informed consideration regulations makes Airlines, CAB, study employs point. g., on A 116 read the EPA E. Inc. v. National 114, 117, 380, impact analysis pre- U.S.App.D.C. (1963); supplementary 321 F.2d economic FCC, Publishing Clarksburg pared Co. for EPA General Electric-TEMPO data on does indicate an absence available compressors, though there seems to 600 cfm models; and, having larger problem no NLRB, Pittsburgh Plate Glass Co. v. study comparable, the substitut- found the data 146, 177, 908, 923, U.S. L.Ed. 61 S.Ct. category. findings 750 cfm for the 600 ed its (1941) opinion) (citations (dissenting Thus, Appendix (J. App.) 200 there Joint omitted). urged finding inadequacy is no basis by petitioners. supra 72. See text at note 68. urge EPA’s that because Petitioners also 98-196, Document, App. Background in ana- J. NLRB, Pittsburgh Plate Glass Co. v. costs, lyzing testing veri- noted note U.S. at S.Ct. expected costs to decrease fication could (dissenting opinion). L.Ed. at ability to utilize reason manufacturer’s 4905(c)(1) (1976). years, subsequent 74. 42 U.S.C. report initial verification regulations requir- the final is not current with concerning questions 75. Petitioners raise Again, petitioners’ ing annual reverification. application cost-of-compliance mandate point This is com- not well taken. statement provisions subject to two other review. to our pletely ulti- consistent with They inadequacy first EPA’s claim that the petitioners’ prot- promulgated. Despite mately data on cost of is demonstrated contrary, the fact remains estations compressors the exclusion per feet 600 cubic possible distinctly reverification waiver (cfm) agen- capacity larger minute parameter not oc- modifications have where cy’s computations attaining the cost of a 76 and, accordingly, Background Docu- curred sound dBA dBA production emission standard with a 3 possibilities to decreased cost ment’s reference tolerance. Brief for Petitioners is not inaccurate. appears, petitioners It mis- permit does not Be- SEA a impossible.76 of the cost

of may prediction issue an SEA as to manufacturer cost precise Administrator cause the the manufac- not foreclose Admin- against an individual of does test necessary, it mandate of the honoring as he the as often deems istrator turer frequency with predict to the Act. possible burdened by a manufacturer VI. CONCLUSION the cost of the or to estimate requests test industry. on the program chal- several presented Petitioners have regulations implementing the petitioners’ lenges to the analyzed, When Act of the Certainly the of Noise Control persuasive. provisions is not complaint compres- the number air express application portable of an limit on in its to absence calculation of puts precise a of the requests many of test While the of issues sors. focus costs out the None- question. jurisdic- of the potential provisions is on outside pressed the theless, there is no in either ex- 16(a) basis grant tional found in Section legislative its statutory language or press review, our Act, thus are immune from The Act history require precision. to such product-testing pro- the Administrator’s formulating mandates no more than that in scrutiny. our Viewed gram has received the take into regulations Administrator integrated entirety, it is clear that this reasonable as to the cost account estimates The basically scheme is reasonable. We it think evident that compliance.77 of a compres- of need for annual reverification Congress did not intend the Administrator capability manufacturer’s sor powerless require be to further of to The selective soundly doubted. cannot the products despite a manufacturer’s — auditing program facially enforcement testing simply such because other need for — ex- Although abuse potential valid. had requests already been issued of that application, resolution ists in its prior the occa- against manufacturer is best consideration in the problem left to peti- of acceptance sions. Yet that what to specific decision invoke context tioners’ would mean. litiga- aspects program. On these Moreover, requirement tion, limited to rea- affirm. we cost, upon based antici- sonable estimates however, is scheme, defi- regulatory program, innovation of pated SEA the scope limits unduly cient in that petitioners’ consistent with own earlier- failure of an hearing provided upon proffered interpretation statutory that evi- Reasonableness demands SEA. regulation. provision covering the Pe- SEA order relevant dence urged require titioners court failure con- such a may issue preface requests hold this We fea- agency. sidered finding with a to believe non-com- “cause and, to en- invalid ture of plying compressors being distributed in measures, we remand this able corrective As commerce.”78 under the current stan- proceedings. to EPA for further litigation dard, suggested guideline is sufficiently ordered. So “open-ended” prohibit precise cost-of- urge. now compliance analysis petitioners ORDER inconsistency petitioners’ The internal PER CURIAM. arguments strengthens conclusion our peti- fallacy proposi- Upon petitioners’ inherent latter consideration of in this petitioners’ supple- Consequently, rehearing, tion. fact tion for degree through noise reduction achievable 76. Brief for Petitioners at 50. application available technolo- of the best 6(c)(1), 4905(c)(1) 77. Section compliance. gy, and the cost of (1976), provides: 34-38; see text 78. Brief for Petitioners at Any regulation respecting prod- . . . at notes 56-66. uct shall include a emission noise standard taking . . . . . into account

469 thereof, support in administrative actions taken mentary pursuant memorandum regard- memorandum respondent’s provisions 6 or either of two other and Section rehearing, it is ing jurisdiction for 6 relates here relevant.4 Section itself standards, only to noise emission Court, ORDERED, petition- by the manufacturers’ warranties.5 procedures and is de- rehearing ers’ aforesaid petition herein, we empha- opinion In our earlier Opinion for the set forth in the nied reasons inspection and en- “monitoring, sized that filed for the herein this date. Court 16’s elude forcement Section do owe their they narrow reach because Opinion PER CURIAM. beyond existence to and thus are Section The issues authority.”6 of our OPINION ON SUPPLEMENTAL rehearing petition identified REHEARING character, thus we are with- of that all them. power out entertain PER CURIAM: judi- sought have Petitioners in this ease regulations promulgat-

cial examination Liability" 1. “Vicarious Agency Protection ed Environmental Petitioners first Section Noise Act of (EPA) pursuant to the Control 204.5-6(b) regulations,7 which of EPA’s case, Much companion Chrys- 1972.1 as in a vicarious lia imposing they characterize EPA,2 v. we Corp. ler we earlier found that for misuse bility manufacturers jurisdiction here lack to review the rules provision specifies distributors. This issued challenged they were not because noise exemptions from standards 6 Act.3 under authority Section any if or condi void initio term deemed ab requested subsequently Petitioners rehear- breached, whether exemption tion of claiming did not ing points, on four that we noted or after As we before distribution. opinion. Despite reach them in prior our prior opinion,8 promulgated it was in our had, we our belief our conviction that Act, which 10 of the implement Section all concluding that we were right product exemptions issuance of authorizes beyond authority, four were statutory our such and conditions as “upon terms [the asked the submit memoranda we necessary pro may find Administrator] discussing jurisdiction. We have restudied welfare.”9 Under public health or tect problem, previous now reaffirm our it is clear that holding Chrysler, our Congress put determination that has jurisdiction. of our regulation falls outside beyond question petitioners pose pur- view of the courts. that, Chrysler argue Petitioners since liability for we reached an of vicarious issue 16(a) Chrysler,

In we held Section violations, so we must do Act, noise emission judicial which vests review at provision well. there Appeals here as But the Court for the District of Colum- Circuit, jurisdiction bia confers over of manufactur- solely dealt with allocation issue EPA, Pub.L.No.92-574, Copco, supra 42 6. Atlas 206 86 Stat. Inc. v. note 1234 (1976) seq. (foot- -, 4901 U.S.C. et cites U.S.App.D.C. §§ [hereinafter at 642 F.2d omitted). as codified]. note U.S.App.D.C. 600 F.2d 904 204.5-6(b) (1979). 7. 40 C.F.R. EPA, Copco, U.S.App.D.C. 3. Atlas Inc. v. EPA, -, -, supra Copco, v. note Atlas Inc. 642 F.2d - n.17, 642 F.2d at EPA, Chrysler Corp. note n. 17. U.S.App.D.C. at 600 F.2d at 907. The other provisions two relate to railroad and motor U.S.C. carrier noise emission standards. 5. See Requirements owing exist- Submission liability, thus warranty

ers’ Act,10 and 6(d)(1) of the to Section ence next review of Petitioners seek our within specifically was consequently regulations, 204.56(a)(1) of Section 16(a).11 to “re jurisdiction empowers as defined Section quire compressor tested sched stated, hand, as we have On other regula to these pursuant uled to be tested imposed by sought to be liability vicarious him, place to at such ... be submitted tions seeks 204.5-6(b) of Section pur for the may designate, and time as he Act, 6 of the no in Section justification tests....”18 Since this pose conducting of review here. subject accordingly the di interprets implements rule Act, rective, that manu 13 of the Section Projections 2. Production coming off the products facturers “make for assembly line available ... of validity challenged Petitioners also Administrator,”19 not concern and does 204.53(b) regulations,12 Section procedures which Section require authorizes granted jurisdiction speaks, it is beyond to submit information manufacturers court Act. early stages In the production schedules. here, litigation the court issued for Conformi- Percentage Requirements 4. review, portion stay, pending one ty for data.13 Petitioners now such Finally, petitioners Sec possible continuing on the seek clarification regulations, which re tion 204.55-1 of the the stay. effect of comply quires compressor new every performance stand applicable with the course, a Ordinarily, stay is This an provi rule is enforcement ards.20 Appellate to Federal pursuant sued Rule promulgated pursuant sion to Section Consequently, holding our 8(a)14 dissolves resolu the Act.21 automatically upon it outside the Chrysler plainly leaves Here, moreover, we appeal.15 tion of the judicial review. previous opinion,16 in our we no noted have jurisdiction 204.53(b) to review be sum, Section resolve jurisdiction In lack we complaints. We current pursuant petitioners’ promulgated, cause it was today so opinion,22 stated in our earlier 6, authority Section but under Section fully peti- to rest. The laywe the matter records, 13,17dealing reports and infor accordingly rehearing tion then, stay will not Manifestly, mation. disposition survive our final the case. Denied. 4905(d)(1) Chrysler (1976); 17. 42 U.S.C. see § § EPA, Corp. supra U.S.App.D.C. v. note 103, 600 at F.2d at 917. 204.56(a)(1) (1979). 18. 40 C.F.R. § 4915(a) (1976); Chrysler

11. 42 U.S.C. see 4912(a)(3) (1976). 42 U.S.C. EPA, Corp. supra U.S.App.D.C. v. note at 600 F.2d at 917. 40 C.F.R. 204.53(b) (1979). 12. 40 C.F.R. § Copco, (1976); Inc. v. 42 U.S.C. 4909 Atlas EPA, U.S.App.D.C. at - note Copco, EPA, (D.C. Atlas Inc. v. No. 76-1354 n.17, n.17; 642 F.2d at 461 see Brief for Peti 27, 1978) (order). Apr. Cir. 61; 47; Respondents Brief for tioners Fed.R.App.P. 8(a). Reply Brief Petitioners at Stores, Inc., 15. FTC v. Town Food EPA, supra Copco, note 22. Atlas Inc. (4th 1977). Cir. n.17, & at - F.2d at 461 & n.17. Copco, EPA, supra 16. Atlas Inc. v. note U.S.App.D.C. at - n.11, - n.17, 642 F.2d n.11, at 460 461 n.17. notes were cited Act, pursuant 42 4912 § 13 of the U.S.C. § testing regulations design leave actu- 10. The regulations, (1976). 40 Some enforcement products testing individual in the hands of al 204.5-6, (1977), from 204.55-1 stem C.F.R. §§ possible. greatest manufacturers to the extent others, 10, (1976), 42 and 40 § U.S.C. 4909 § approach, inter- This with its built-in conflict of 11, 204.4(f), 204.56(b)(2), 204.55 §§ C.F.R. 204.57-1(f), est, while considered less burdensome (1977), U.S.C. § 204.59 involved, loudly for a total calls out (1976). § regulatory capable providing a check scheme participation. The Adminis- on manufacturer 4905(c)(1) (1976). § 18. U.S.C. pro- auditing trator’s selective enforcement infra, gram, coupled with described in Part I Act, Although 42 U.S.C. 6 and 13 of the 19. §§ pro- agency’s inspection monitoring the grams, attempt and overlap arguably in au- §§ satisfy this need. thorizing establish the Administrator to juris- procedures, sufficient for our we deem it 204.4, 204.53, (1977). 204.56 11. 40 C.F.R. §§ 204.57- that 40 204.55-10 and §§ diction C.F.R. (1977) 6. are within the of § (1977). Id. 204.4 § 204.55-11, 204.5-6, 204.55-1, 204.4(f), Id. §§ 4905(c)(1) (1976). U.S.C. § 204.56(b)(2), 204.57-l(f), 204.59 1972, 16(a), 42 Act of Noise Control 16(a) 4915(a) (1976). authorizes Section also 22. 40 204.55 regulations promulgat- and review of standards apply respective- ed under §§17 compressor been assem- have A test must ly to railroads and motor carriers and conse- pro- normal use of the manufacturer’s bled quently have no role in this case. process, that will duction and must be one 40 C.F.R. or offered for sale commerce. sold 528, 538, Lavine, Hagans 15. See 415 U.S. prior approv- Without EPA § al, 1372, 1379-1380, 39 L.Ed.2d S.Ct. (1974); prepared, compressor not to be a test Zuieback, (9th Koch v. tested, modified, adjusted or maintained 1963). Cir. pre- part manufacturer’s manner save procedures. Id. 204.55-6 scribed 600 F.2d 904 verification, product’s compli- duction a test compressors must under- configuration24 the control go verification under production noise levels ance with established does A specified configu- manufacturer.25 conformity of each subsequently assure it has considered verified once ration is configura- within that produced compressor shown, relevant noise meas- through been problem that the tion. It to meet this was testing methodology, that the test urement The Adminis- program was devised. configuration meets the for that compressor procedure trator initiates level standard.26 To mini- applicable noise configuration category, request specifying a self-testing proce- of this mize the burden examined, group configurations or test, dure, may in lieu of all a manufacturer plant or as well as manufacturer’s stor- highest noise-emitting configurations, compressors which the age facility from particular category27 in a configuration Following receipt must be selected.32 product with the request, manufacturer conduct is sufficient verification emission standards the same product testing;33 proce- further category.28 within the The products of all verification employed dures require additionally annual veri- utilized, base of on a broader com- but configuration, category fication for each gathered thus are used pressors.34 The data whether modifications in appropriate, when randomly select- sampling as a statistical of a parameters configuration the basic sufficient number products or not.29 ed tested have occurred manufacturer, waive may, as to whether to enable a valid inference

Case Details

Case Name: Atlas Copco, Inc. v. Environmental Protection Agency

Court Name: Court of Appeals for the D.C. Circuit

Date Published: May 30, 1980

Citation: 642 F.2d 458

Docket Number: 76-1354

Court Abbreviation: D.C. Cir.