Recreation Vehicle Industry Ass'n v. E.P.A.
| Decision Date | 16 April 1981 |
| Docket Number | 78-1117,Nos. 76-1875,s. 76-1875 |
| Citation | 653 F.2d 562 |
| Parties | , 59 A.L.R.Fed. 689, 209 U.S.App.D.C. 307, 11 Envtl. L. Rep. 20,587 RECREATION VEHICLE INDUSTRY ASSOCIATION, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. CHRYSLER CORPORATION, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petitions for Review of Orders of the Environmental Protection agency.
Maurice H. McBride, Chantilly, Va., with whom David J. Humphreys, Henry G. Pons and Edmund C. Burnett, Chantilly, Va., were on the brief, for petitioner in No. 76-1875.
Patrick M. Raher, Washington, D. C., with whom Victor C. Tomlinson and Connie R. Gale, Detroit, Mich., were on the brief, for petitioner in No. 78-1117.
Barbara H. Brandon, Attorney, E. P. A., Washington, D. C., a member of the bar of the Supreme Court of Pennsylvania, pro hac vice by special leave of the Court, with whom James W. Moorman, Acting Asst. Atty. Gen., Angus MacBeth, Thomas A. Pursley, III, Attys., Dept. of Justice, Joan Z. Bernstein, Acting General Counsel, and Jeffrey O. Cerar, Atty., E. P. A., were on the brief, for respondent. Peter R. Taft and Charlotte Uram, Attys., Dept. of Justice, and Ronald S. Naveen and Gloria J. Ellis, Attys., E. P. A., Washington, D. C., also entered appearances for respondent.
Before ROBINSON, MacKINNON and ROBB, Circuit Judges.
Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.
Petitioners, manufacturers of motor homes, 1 challenge the decision of the Environmental Protection Agency (EPA) to treat their products as "medium and heavy trucks" for purposes of regulating noise emission levels 2 under the Noise Control Act of 1972. 3 EPA's promulgation of regulations to that end was procedurally defective, they contend, and without evidentiary foundation. Our review leads us to conclude that EPA not only acted within the bounds of the Act's procedural demands, but also provided adequate support for subjecting motor homes to the requirements established for medium and heavy trucks.
In 1972, Congress enacted the Noise Control Act in response to the growing threat posed nationwide by uncontrolled noise in the environment. 4 In so doing, Congress declared that "it is the policy of the United States to promote an environment for all Americans free from noise that jeopardizes their health or welfare." 5 The Act vests broad discretion 6 in the Administrator of EPA to coordinate the development of standards setting permissible noise levels, 7 and to issue regulations governing noise emissions of products introduced into the stream of commerce. 8
To guide the Administrator in discharging the latter duty, the Act prescribes a two-step regulatory process. First, under Section 5(b), the Administrator must consult with appropriate federal agencies, and then compile and publish a list of products or classes of products that in his judgment are "major sources of noise." 9 Second, under Section 6(a), he must promulgate noise emission standards, to the extent deemed feasible, for each product which is identified, or which is part of a class identified, under Section 5(b), 10 and which falls within one of four designated product categories. 11
In early 1974, EPA proceeded under Section 5(b) to assemble information on major sources of noise in the transportation equipment product category. 12 On June 21, 1974, EPA published a notice listing medium and heavy trucks, 13 one of nine subcategories of transportation equipment, 14 as a major source of noise. 15 Nowhere in the notice, however, was there any mention of motor homes. 16 Nevertheless, on October 30, 1974, EPA published proposed noise emission standards 17 "applicable to any motor vehicle which has a gross vehicle weight rating (GVWR) in excess of 10,000 pounds, (and) which has been designed for transportation of persons and property on a highway or street ... includ(ing) such vehicles as motor homes...." 18
Public hearings were held, and petitioners submitted written comments 19 challenging the inclusion of motor homes within the regulations' coverage. 20 Final regulations were published on April 13, 1976, 21 but, unlike the notice of proposed rulemaking, 22 they were not explicit about whether they were applicable to motor homes. Instead, the coverage section of the regulations broadly encompassed "any vehicle which has a gross vehicle weight rating (GVWR) in excess of 10,000 pounds, (and) which is capable of transportation of property on a highway or street." 23
As a result, on May 13, 1976, petitioner Recreation Vehicle Industry Association sought clarification from EPA as to the applicability of the regulations to motor homes. 24 When, four months later, EPA still had not responded, RVIA filed a petition for review in this court. 25 Not until December 22, 1976, more than seven months after RVIA submitted its request for clarification, did EPA notify RVIA that the regulations were intended to embrace motor homes. 26 After briefing, but prior to oral argument in this court, RVIA sought reconsideration of the decision to include motor homes within the regulations' ambit, 27 and EPA agreed. 28 On August 3, 1977, however, EPA published the results of its reconsideration, and once again refused to exclude motor homes from the regulations. 29 The process of review in this court then resumed. 30
Petitioners challenge any application of these regulations to motor homes on two grounds. They assert that because EPA did not list motor homes as a major source of noise pursuant to Section 5(b) of the Act, 31 it lacks authority to issue noise emission standards respecting such vehicles under Section 6(a). 32 Petitioners also contend that EPA's decision to bring motor homes within the coverage of the medium and heavy truck regulations 33 was arbitrary and capricious because it never tested or otherwise studied motor homes per se to determine whether their inclusion was justified. 34 In addition to resisting these claims, EPA argues that this court lacks jurisdiction to consider RVIA's petition for review because it was filed more than 90 days after promulgation of the regulations in suit. 35 We address the jurisdictional question first, 36 and then the issues on the merits. 37
EPA renews the contention this court earlier rejected in denying the agency's motion to dismiss RVIA's petition for untimeliness. 38 EPA asserts that because RVIA waited until September 20, 1976, to come forth with its petition to review regulations promulgated 160 days earlier on April 13, 1976, it failed to comply with the Act's requirement 39 that review petitions be filed within 90 days of a challenged regulation's issuance. 40 We explain why this theory is unacceptable.
Before any litigant reasonably can be expected to present a petition for review of an agency rule, he first must be put on fair notice that the rule in question is applicable to him. Otherwise the agency could promulgate a confusing regulation and, after expiration of the time for any judicial contest, clarify it to the surprise and prejudice of a party whose opportunity for judicial review meanwhile has been extinguished. 41 Here, for a considerable period, EPA left unclear the applicability of its truck regulations to the motor home industry. The agency cannot now take advantage of the obscurity of intentions in order to defeat rights statutorily conferred.
Pursuant to its obligations under Section 5(b) of the Act, EPA published a list of major sources of noise, including medium and heavy trucks, without mention of motor homes eo nomine. 42 Later, the agency published a notice of intended rulemaking and specifically referred to motor homes as subject to the proposed noise emission standards. 43 In response, petitioners submitted extensive comments objecting to any such treatment of motor homes and seeking to exclude them from coverage. 44 When adopted in final form, the regulations made no mention whatsoever of motor homes. 45
EPA argues that because RVIA was an active participant in the rulemaking proceeding, it is disingenuous for it to claim uncertainty about whether the regulations as adopted were applicable to motor homes. 46 We cannot agree. It is true given the specific reference to motor homes in the October 30, 1974, notice of intended rulemaking that RVIA had reason to expect that any noise emission standards ultimately promulgated might be directed to motor homes along with medium and heavy trucks generally. But, particularly in light of the subsequent efforts of both RVIA and Chrysler to secure the exemption of motor homes from coverage, 47 we think EPA's total silence on motor homes in the final regulations was sufficiently equivocal to leave RVIA in doubt about whether motor homes were subject to the new standards. Nor was this ambiguity diminished by EPA's modification of the applicability provision of the final regulations to cover vehicles "capable of transportation of property," rather than those "designed for transportation of persons and property" as proposed in the notice of rulemaking. 48 On the contrary, elimination of the reference to "persons" could serve only to heighten the uncertainty; for while motor homes are "capable of transportation of property," they are more commonly considered vehicles "designed for transportation of persons."
RVIA's prompt request for agency clarification lends credence to its claim that it was confused about whether the final regulations applied to motor homes. It also signifies RVIA's good faith in bringing the ambiguity to the agency's attention. And the seven months that elapsed between RVIA's bid for elucidation and EPA's response tends to belie the agency's claim that motor homes were "obviously covered" by the final regulations. 49 There simply is no reason to assume that,...
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