Applications to stay -- pending appeal to the Court of Appeals
-- the District Court's order holding the Administrator of the
Environmental Protection Agency in contempt for failing to
promulgate certain emission standards for radionuclides as required
by the District Court's earlier order based on its interpretation
of § 112(b)(1)(B) of the Clean Air Act, are denied.
JUSTICE REHNQUIST, Circuit Justice.
Applicants, the Acting Administrator of the Environmental
Protection Agency (EPA), the EPA, and the Idaho Mining Association,
ask me to stay an order of the United States District Court for the
Northern District of California pending appeal to the Court of
Appeals for the Ninth Circuit. The order holds the Administrator in
contempt for failing to promulgate certain emission standards for
radionuclides as required by an earlier District Court order. The
controversy has reached this point due to a disagreement between
the District Court and the agency over the construction of §
112(b)(1)(B) of the Clean Air Act, as added, 84 Stat. 1685, 42
U.S.C. § 7412(b)(1)(B), which governs the actions the agency must
take with respect to establishing emission standards for hazardous
air pollutants. Essentially, the District Court reads the section
to require the EPA either to promulgate emission standards for all
sources of the pollutant previously identified by the agency or to
make a specific finding that the pollutant "is not a hazardous air
pollutant"; the agency believes that, under the section, it may
establish standards for some sources but not for others.
Page 469 U. S. 1310
Applicants seek the unusual relief of a stay from this Court
pending appeal to a Court of Appeals.
See Atiyeh v. Capps,
449 U. S. 1312,
449 U. S.
1313 (1981) (REHNQUIST, J., in chambers). They have not
pointed us to a conflict of authority on the issue decided by the
District Court. Under those circumstances I do not think a stay is
in order. Even if the Court of Appeals were to affirm the District
Court, I am by no means certain that four Members of this Court
would vote to grant certiorari to review this statutory
question.
The applications for stay are accordingly denied.
* Together with No. A-40,
Idaho Miniing Association v.
Sierra Clubm et al., also on application for stay of the same
order.
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