LEE M. THOMAS, ACTING ADMINISTRATOR AND THE ENVIRONMENTAL
PROTECTION AGENCY, APPLICANTS v. SIERRA CLUB

   No. A-537

   In The Supreme Court Of The United States

   October Term 1984

   Application For Stay Of The Order Of Contempt Entered By The United
States District Court For The Northern District Of California Pending
Appeal To the Ninth Circuit

   Application For Stay Of The Order Of Contempt Entered By The United
States District Court For The Northern District Of California Pending
Appeal To the Ninth Circuit

   The Solicitor General, on behalf of the Acting Administrator of the
Environmental Protection Agency and that agency, requests, pursuant to
Rule 44 of the Rules of this Court, that an order be entered staying
the order of contempt entered by the United States District Court for
the Northern District of California on December 11, 1984, pending
appeal to the United States Court of Appeals for the Ninth Circuit.
In support of this application, petitioners state as follows:

   1. This case was originally brought to enforce a mandatory,
non-discretionary duty to regulate radionuclides, a hazardous air
pollutant under the Clean Air Act, 42 U.S.C. 7401 et seq.  After the
Administrator of the Environmental Protection Agency concluded that an
emission standard should be promulgated, he and the Agency were found
to be in contempt by the district court because of his determination
that additional regulations were not necessary to protect the public
health.  The case implicates three provisions of the Clean Air Act.

   First, Section 112 of the Act, 42 U.S.C. 7412, establishes a
mechanism for regulation by EPA of hazardous air pollutants.  Under
that section, the Administrator of EPA must formally list "each
pollutant for which he intends to establish an emission standard under
this section." 42 U.S.C. 7412(b)(1)(A).  Within 180 days after listing
of a pollutant, the statute provides that "the Administrator shall
publish proposed regulations establishing emission standards for such
pollutant * * * ." 42 U.S.C. 7412(b) (1)(B).  This proposal must be
followed by promulgation of a final rule establishing "an emission
standard" within a further 180 days unless the Administrator finds
"that such pollutant clearly is not a hazardous air pollutant." Ibid.
Any such standard must be established at a level that the
Administrator determines "provides an ample margin of safety to
protect the public health from such hazardous air pollutant." Ibid.
Second, Section 304(a)(2) of the Act, 42 U.S.C. 7604(a)(2), is
involved in this case because it allows "any person" to bring an
action against the Administrator where it is alleged that he failed
"to perform any act or duty * * * which is not discretionary * * * ."
The third pertinent provision of the Act, Section 307(b)(1), 42 U.S.C.
7607(b)(1), declares that review of any final action of the
Administrator under Section 112 of the Act may only be had by filing a
petition for review in the United States Court of Appeals for the
District of Columbia Circuit.

   2. In 1979, the Environmental Protection Agency designated
radionuclides (radioactive atoms which emit ionizing radiation) as a
hazardous air pollutant pursuant to Section 112 of the Act, 42 U.S.C.
7412.  See 44 F.R. 76738 (December 27, 1979).  When the agency failed
to publish proposed emission standards for that hazardous air
pollutant within 180 days, Sierra Club invoked the citizen suit
provision of the Clean Air Act, Section 304(a)(2), 42 U.S.C.
7604(a)(2), and obtained an order from the United States District
Court holding that the Administrator had a mandatory, nondiscretionary
duty under Section 112 to promulgate proposed standards.  Sierra Club
v. Gorsuch, 551 F. Supp. 785 (N.D. Cal. 1982).  The agency complied on
April 6, 1983, by publishing proposed emission standards for
radionuclides.  See 48 F.R. 15076.  In that proposal, the agency
identified nine separate source categories emitting radionuclides that
could be considered for regulation.  As to five of those source
categories, EPA announced its intention not to propose any emission
limitations, either because those sources were already regulated under
other sections of the Act or because emissions did not rise to a level
of danger required by Section 112 for regulation.  For the other four
source categories, emission standards were proposed.  Public comment
was invited on the entire proposal.

   3. As noted earlier, Section 112(b)(1)(B) also provides that not
later than 180 days after publication of proposed standards, "the
Administrator shall prescribe an emission standard for such pollutant,
unless he finds, on the basis of evidence presented at such hearings,
that such pollutant is clearly not a hazardous air pollutant." 42
U.S.C. 7412(b)(1)(B).  When the agency failed to take timely action on
a final rule, the Sierra Club filed this action, contending that the
Administrator had a mandatory, nondiscretionary duty to adopt a final
standard or to "delist" radionuclides from inclusion as a hazardous
air pollutant.  On July 25, 1984, the district court granted the
Sierra Club's motion for summary judgment (Attachment A) and directed
the agency to take final action.  After further pleadings, the court
issued an amended summary judgment order (Attachment B) on September
17, 1984, which delcared:

      The Administrator of the EPA will issue final standards for
      radionuclide emissions or a finding on the basis of information
      presented at hearings during the rulemaking that radionuclides
      are clearly not a hazardous pollutant, * * * within ninety (90)
      days from the date of this Opinion and Order, July 25, 1984.
      (Emphasis original.)

The petitioners filed a notice of appeal from this order but did not
seek a stay pending appeal.

   4. In response to the court's amended summary judgment order, the
Administrator signed a Federal Register notice on October 23, 1984,
addressing final regulations for radionuclides.  49 F.R. 43906
(October 31, 1984).  The Administrator noted that in the earlier
rulemaking on proposed radionuclide emission standards, EPA had
identified nine separate categories of sources for potential
regulation, but also had announced its intention not to propose any
emission standards for five of these source categories.  /1/ The
Administrator's October 23, 1984, decision made final the proposed
determination to take no regulatory action respecting those
categories.  49 F.R. 43913-43914.  The Administrator also determined
that no regulation under Section 112 was required for three of the
four source categories for which proposed emission standards had been
published in 1983.  49 Fed. Reg. 43911-43912.  He found that emissions
from these sources (elemental phosphorous plants, Department of Energy
facilities, and Nuclear Regulatory Commission-licensed and
non-Department of Energy federal facilities) also failed to present
the degree of risk to public health required for regulation under
Section 112.  But as to the ninth source category, uranium mines, the
Administrator concluded that regulation of radionuclide emissions was
clearly required.  For this reason, the Administrator did not believe
that he could "delist" radionuclides by declaring that, generically,
such pollutant was not hazardous within the meaning of Section 112.
At the same time, the Administrator found that the approach taken in
the proposed emission standard for uranium mine emissions was fatally
flawed in both a practical and legal sense, and that work would have
to begin anew on a different approach which could not be completed
within the time allotted by the amended summary judgment order.  49
F.R. 43912-43913.  Pursuant to Section 307(b)(1) of the Act, 42 U.S.C.
7607(b)(1), a petition to review all aspects of the Administrator's
final decision, covering all nine source categories, was filed in the
United States Court of Appeals for the District of Columbia Circuit.
Environmental Defense Fund, Inc. v. Ruckelshaus, D.C. Cir., No.
84-1524, filed Oct. 29, 1984.

   5. However, on October 29, 1984, Sierra Club challenged the
Administrator's decision by filing with the district court an
Application for an Order to Show Cause Re Contempt.  The Sierra Club
took strong opposition to the Administrator's decision not to propose
any emission standards for the three source categories for which
standards had been proposed in 1983.  The Sierra Club characterized
that aspect of the Administrator's decision as an illegal withdrawal
of standards, in violation of the district court order.  It also
argued that the Administrator could no longer delay issuing an
emission standard governing uranium mines.  However, the Sierra Club
did not challenge the remainder of the Administrator's decision which
made final his 1983 proposal to not regulate radionuclide emissions
from the other five source categories.

   After a hearing, the district court on December 11, 1984, declared
the Administrator and the agency to be in contempt of court
(Attachment C).  The court asserted that the petitioners had violated
its final order to comply with Section 112.  However, the court then
significantly changed the nature of its judicial command, by directing
the petitioners not merely to adopt final regulations as provided by
Section 112 and as called for in its amended summary judgment order,
but to promulgate emission standards for each of the particular source
categories for which proposed standards had been published in 1983.
The court directed that petitioners must (Attachment C at 11):

      1. (a) Issue within 30 days of the filing of this Opinion and
      Order final radionuclide emission standards for DOE facilities,
      NRC-licensed and non-DOE federal facilities, and elemental
      phosphorous plants, and (b) Issue within 120 days final
      radionuclide emission standards for uranium mines;  OR 2. Make a
      finding on the basis of the information presented at hearings
      during the rulemaking, that radionuclides are clearly not a
      hazardous pollutant.

   6. On December 20, 1984, the petitioners filed a notice of appeal
from the December 11, 1984, order.  On the following day, the
petitioners invoked Rule 8(a), F.R.A.P. and sought a partial stay of
that order, only insofar as paragraph 1(a) compelled the promulgation
by January 11, 1985, of final emission standards for the three source
categories which the Administrator had concluded should not be
regulated.  As to paragraph 1(b), the agency asserted its intention to
adopt a final rule governing radionuclide emissions from uranium mines
with the time provided by the court.  And, because it remained
convinced that the public health required regulation of radionuclide
emissions from uranium mines, the agency concluded that it could not
"delist" radionuclides as a hazardous air pollutant, pursuant to
paragraph two of the court's order.

   On January 3, 1985, the district court denied the petitioners'
motion for partial stay pending appeal (Attachment D).  On January 9,
1985, a panel of the United States Court of Appeals for the Ninth
Circuit (Judges Nelson and Canby) also denied a motion for partial
stay pending appeal, but did stay the district court order for seven
days to allow an application for relief to be made to this Court
(Attachment E).  /2/

   7. The petitioners acknowledge that they face a heavy burden in
requesting a stay of a contempt order following summary judgment when
both the district court and the court of appeals have declined to stay
the order of contempt.  See Heckler v. Lopez, 104 S.Ct. 10 (1983);
Atiyeh v. Capps, 449 U.S. 1312, 1313 (1981).  Nevertheless, because
the district court's order represents such fundamental legal error
that if left undisturbed, four Justices of this Court would likely
vote to review it, and because the equities in favor of a stay clearly
tip in favor of the applicants and the public interest, a stay of
paragraph 1(a) of the order of contempt is both warranted and
necessary.

   Fundamental to the application is the fact that, as announced in
the order of contempt, the district court has embraced a view of
Section 112 which is not only clearly wrong as a matter of law but
utterly outside its jurisdiction to enunciate.  /3/ The district court
asserts that the jurisdictional basis for its orders is found in a
straightforward reading of Section 112 of the Act.  The assertion is
untenable.  Whatever the merit of the court's summary judgment order,
there is no basis in Section 112 for the December 11, 1984, command to
purge contempt by promulgating regulations for specific source
categories (Attachment C at 11, para. 1a).

   a. At the outset, the order of December 11, 1984 is not supported
by the language of the statute.  Section 112(b)(1)(A) directs the
Administrator to publish "a list which includes each hazardous air
pollutant for which he intends to establish an emission standard under
this section." Section 112(b)(1)(B) directs the Administrator to issue
"an emission standard * * * " as a consequence of listing a pollutant
as hazardous under that section.  By promulgating a final emission
standard governing radionuclide emissions from uranium mines, the
Administrator satisfies his mandatory, non-discretionary duty to take
final action.  The balance of the duties in this section are not
mandatory but discretionary, for the final sentence of Section
112(b)(1)(B) provides:  "The Administrator shall establish any such
standard at the level which in his judgment provides an ample margin
of safety to protect the public health from such hazardous air
pollutant." (Emphasis added).  Thus, if the Administrator designates a
hazardous air pollutant under Section 112, he must promulgate "an
emission standard" as a non-discretionary duty.  All other
determinations, including the number of standards, the source
categories regulated, and the content of the regulation are left "to
his judgment" and are discretionary.

   b. Because the district court's December 11, 1984, order misreads
the language of the statute, the order leads to results that are
absurd as a matter of policy.  Since Section 112(b)(1)(A) directs the
Administrator to "list" pollutants for which he intends to establish
regulations, it is reasonable for Section 112(b)(1)(B) to require him,
upon listing, to either issue a regulation or withdraw the listing.
In some cases, the Administrator may conclude that a pollutant must be
listed because emissions from one industry are so high that the public
health is threatened.  But it is unreasonable to conclude that the
Administrator may not list the pollutant and regulate Industry A
unless he is also willing to regulate Industries B, C, and D as well.
And, this result is altogether untenable when, as here, the
Administrator has made a finding that Industries B, C, and D pose no
threat to the public health.

   c. The December 11, 1984, order is the first judicial criticism of
a consistent agency interpretation of Section 112 that extends back to
1973 and that has been applied in fashioning emission standards for
every hazardous air pollutant regulated under that section of the Act.
 /4/ No court has ever declared that EPA must be put to the Hobson's
Choice of regulating all manifestations of a hazardous pollutant as
the price for regulating those few that are truly dangerous.  This
interpretation of Section 112 by the agency is nothing more than a
recognition that a risk to public health must surpass a certain
threshold of significance before it can be said to threaten public
health.  As a consistent agency interpretation of its statute that has
never been faulted by a reviewing court, it should have been respected
by the district court in its December 11, 1984 order.

   d. This interpretation of Section 112 by EPA to allow a threshold
of harm before imposing regulatory controls is particularly
appropriate in the context of regulating radionuclides.  It is
indisputable that thousands of sources -- if not more -- emit
radionuclides.  Surely Congress did not intend the agency to devote
its limited resources to the promulgation of countless meaningless
emission standards simply because emissions from one or several source
categories do present a threat to public health.  Conversely, Congress
cannot be charged with inhibiting the Administrator from listing a
pollutant that is truly hazardous, because of the high price in agency
resources attendant to such listing.  /5/

   Thus, there is no merit to the district court's view that Section
112 requires EPA to regulate hazardous air pollutants without any
threshold of harm within that process.  The district court's order of
December 11, 1984, has no precedential support, and is contradicted by
the language of the statute, its overall purpose and policy,
consistent agency interpretation and common sense.  The agency has
fulfilled its mandatory, non-discretionary duty by establishing an
emission standard for uranium mines and deciding that no other source
category of radionuclide emissions need be regulated.  That decision
may or may not survive review in the D.C. Circuit.  But, in any event,
it was altogether improper for the district court to invoke Section
112 and exercise the power of contempt in an effort to coerce the
Administrator into the promulgation of meaningless, emission standards
for other source categories.

   e. In our effort to obtain a stay pending appeal of the December
11, 1984 order, the only response of Sierra Club to the points made
above is that the Administrator can "delist" individual source
categories of air pollution as an alternative to the generic
"delisting" or withdrawal of the pollutant itself from the scope of
Section 112.  (See Sierra Club Response In Opposition To The Emergency
Motion For Partial Stay, Attachment G, page 1.) This suggestion, never
briefed or argued before the district court, contradicts the
consistent agency interpretation that "listing" under Section 112
refers to a pollutant generically or as a whole, and not to individual
source categories.  Similarly, the suggestion by both members of the
Ninth Circuit Emergency Motions Panel during argument that the agency
could comply with the district court order by adopting regulations
which simply preserved existing levels of emissions from sources
presenting an insignificant risk to public health, reads into the
Clean Air Act a mandatory duty to regulate sources that concededly
pose no public health risk.  The fact that such issues have even
arisen demonstrates both the error of the district court's
interpretation of Section 112 and the extent to which it has strayed
from the jurisdictional sphere assigned to it by the statute.

   8. Having demonstrated that the district court's view of Section
112 is altogether erroneous, it now becomes even more apparent that
the court was without any jurisdiction to issue the commands of
December 11, 1984.  Once the Administrator satisfies his
nondiscretionary duty to adopt "an emission standard", and further
concludes that additional standards are not necessary to protect the
public health, the district court's jurisdiction is exhausted.

   This is because, under Section 304(a)(2) of the Act, district
courts have jurisdiction only to require the performance of mandatory,
non-discretionary duties.  See, Trustees for Alaska v. EPA, Nos.
83-7764, 83-7961 (9th Cir. Dec. 10, 1984), slip op. at 18-19;
Kennecott Copper Corp. v. Costle, 572 F.2d 1349, 1357 (9th Cir. 1978).
 Thus, a district court has authority to set a deadline for the
promulgation of a regulation when the agency fails to comply with the
statutorily-mandated deadline.  Natural Resources Defense Council v.
Train, 521 F.2d 692, 712-713 (D.C. Cir. 1974).  Such authority,
however, expires when the agency takes final action on the rule.
Pursuant to the provisions of Section 307(b)(1) of the Act, the
content of a final rule having nationwide applicability may only be
challenged by filing a petition for review in the United States Court
of Appeals for the District of Columbia Circuit.  See, Harrison v. PPG
Industries, 446 U.S. 578 (1980).

   When the court issued its summary judgment order (Attachment A at
7), it correctly observed that it had "no jurisdiction to evaluate the
health risks posed by radionuclides or to review the adequacy or even
the need for regulation." However, the December 11, 1984 order can not
be reconciled with this earlier recognition of a district court's
jurisdictional limitations.  The court found the Administrator and the
agency in contempt, not because they had failed to adopt "an emission
standard" but because they had failed to promulgate four standards.
Then, it declared that the only way for petitioners to purge the
contempt was to issue standards for those sources that the
Administrator had concluded did not require regulation.  This
reasoning obliterates the distinction Congress carefully crafted
between district court and court of appeals for the District of
Columbia Circuit jurisdiction.  It allows district courts everywhere,
in the guise of compelling mandatory, non-discretionary duties, to
judge whether the Administrator has properly made discretionary
decisions on standards of nationwide applicability.  If the district
court here is correct, a large portion of the case now pending before
the D.C. Circuit on petition for review has already been decided
through the resolution of an order to show cause on contempt.  /6/

   9. The equities also strongly favor the petitioners.  If this stay
pending appeal is not granted, the petitioners would be forced
immediately to promulgate and defend regulatory controls that the Act
does not require.  Such emission standards would be effective at once,
but only until the district court is reversed on appeal.  /7/ If the
petitioners were to promulgate meaningless standards for sources that
do not pose a public health threat, they would be trivializing the
Act.  Alternatively, adoption of other, more stringent standards would
force a degree of compliance from industries that is unwarranted under
the Act.  Nor could the petitioners promulgate such standards and
decline to enforce them, for mere promulgation would expose the
regulated sources to citizen suits under Section 304 of the Act, 42
U.S.C. 7604, requiring enforcement of those standards.  In sum, the
agency, the public interest and the regulated communities would be
irreparably injured by such stop-and-go rulemaking, especially when
such judicially prescribed standards could be declared unnecessary by
an expedited appeal of the district court orders.

   On the other hand, the Sierra Club can claim no irreparable injury
attributable to a delay that may not exceed several months.  It may
argue that the struggle to obtain final action on radionuclides has
been long and protracted, and that additional delay would only
exacerbate an already unacceptable situation.  But as we observed
earlier, the nature of this case changed when, in response to the
amended summary judgment order, the Administrator took final action
regulating radionuclide emissions.  The Sierra Club has not challenged
that final decision by petitioning for review in the D.C. Circuit as
have others.  Instead, it seeks to use the extraordinary and
disproportionate remedy of contempt to advance a novel legal theory in
a court that lacks jurisdiction to consider it.  No harm will befall
the respondent if this effort is momentarily stayed.

   Finally, it must be recognized that the public interest strongly
supports the granting of a stay pending appeal.  Under the Clean Air
Act, it is the Administrator who has been charged with speaking for
the public interest.  When he concludes, after examining the
information produced during the rulemaking, that regulation of
radionuclides from these source categories is not warranted to protect
the public health, that is a public interest determination entitled to
deference from the courts.  /8/

                              CONCLUSION

   For these reasons, a stay of paragraph 1(a) of the December 11,
1984, order of the district court, pending appeal to the Ninth
Circuit, should be granted.

   REX E. LEE

      Solicitor General

   JANUARY 1985

   /1/ These source categories were coal-fired boilers, the phosphate
industry, uranium fuel cycle facilities, uranium mill tailings,
management of high level waste, and low energy accelerators.

   /2/ Petitioners' motion to consolidate its appeal from the summary
judgment order with its appeal from the order of contempt is still
pending.

   /3/ No doubt, respondent would suggest, as it did in the courts
below, that the scope of the district court's mandate was always clear
and that petitioners may not use the contempt process to challenge the
correctness of a court's underlying ruling.  It is worth noting here
that both the petitioners and, apparently, the district court viewed
the amended summary judgment order as no more than a directive to
comply with Section 112 of the Act.  See Transcript of November 21,
1984, page 39, Attachment F.  For this reason, a motion for stay
pending appeal was not sought from the summary judgment order.  Only
after the Administrator's determination of October 23, 1984, did the
district court depart from its earlier, more general directive to take
action on final standards, and specifically hold that as to the three
disputed source categories the agency must either issue final emission
standards for each or declare that radionuclides were not a hazardous
air pollutant.

   /4/ See, for example, EPA's decision in 1975 to regulate only
several source categories emitting vinyl chloride, 40 F.R. 59421,
59534, col. 3;  59535, col. 1 (December 24, 1975), and a similar
decision regarding asbestos in 1973.  38 F.R. 8820, 8811, col. 1
(April 6, 1973).

   /5/ Ironically, the district court's view of Section 112 is, as
applied, internally inconsistent.  The court directed the promulgation
of emission standards for only those source categories for which
regulations had been proposed in 1983.  If an all-or-nothing view of
Section 112 is correct, the Administrator should have been charged
with the duty to promulgate standards for all nine categories of
sources originally identified, regardless of whether standards were
ever proposed.

   /6/ Our argument that the district court lacked jurisdiction to
demand specific source category regulations should not be interpreted
as suggesting that in an action to enforce a mandatory,
non-discretionary duty, a district court must blindly accept any
assertion by a defendant that final action has been taken and the
district court's jurisdiction is exhausted.  In this as in other
litigation where jurisdictional questions predominate, a court always
has jurisdiction to determine if it has jurisdiction.  Here, the
dispute is not factual but legal.  It concerns whether
"non-discretionary" actions remain to be taken under Section 112 or
whether the Administrator has exercised that function in a manner that
can only be reviewed by the D.C. Circuit.  Given the exclusive
jurisdiction of the D.C. Circuit to review the substance of the
Administrator's decisions, the district court's role should be
constrained to determining whether a plausible legal position has been
advanced in support of a claim that its jurisdiction is exhausted by
adoption of final agency action.

   /7/ Should the respondent suggest that the Administrator has the
statutory authority administratively to stay the effectiveness of any
such standards for up to two years, see Section 112(c)(1)(B) (ii) of
the Act, 42 U.S. 7412(c)(1)(B)(i), it would seem more appropriate to
have acquiesced to a stay by the district court, thereby making this
application unnecessary.

   /8/ In an affidavit tendered to the district court in the contempt
proceeding, the former Administrator noted, for example, that the
total risk to the public from all radionuclide emissions in one source
category he determined not to regulate amounted to one death every 50
years.  Under these circumstances, preservation of the status quo is
not irreparable injury to the respondent.

                               APPENDIX