Petition for Writ of Certiorari — Firestone Tire & Rubber Co. v. United States

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e~ 1) S Yourt, U.S.

85-3840 [ Ft |

No. 85- | AUG 28 1985

IN THE v8 a a

Supreme Court of the uted States

October Term, 1985

Firestone Tire & Rusper CoMPANy and

OccIDENTAL CHEMICAL CORPORATION,

Petitioners,

Untrep States or AMERICA,

Respondent.

eet a

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

*Gary H. Balse

ALBERT J. BEVERIDGE IIT

RoBERT BRAGER

BEveERIDGE & Dtamonp, P.C.

1333 New Hampshire Ave., N.W.

Washington, D.C. 20036

(202) 828-0281

Attorneys for Petitioner

Firestone Tire & Rubber Company

STEPHEN S. Livrnaston

THOMPSON & KNIGHT

3300 First City Center

Dallas, TX 75201

(214) 969-1700

Attorney for Petitioner

Occidental Chemical Corporation

*Counsel of Record

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PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTIONS PRESENTED

1. Whether a district court is prohibited from de-

termining that a regulation is not an emission stand-

ard in civil enforcement actions under the Clean Air

Act (‘“‘CAA”’ or ‘‘Act’’), even though it has such

authority in criminal enforcement proceedings under

the Act.

2. Whether 40 C.F.R. §61.65(a) is an emission

standard within the meaning of Section 112 of the

Act, even though it does not require a quantitative

limit on emissions.

LIST OF ALL PARTIES

Petitioners are Firestone Tire and Rubber Com-

pany (‘‘Firestone”)* and Oecidental Chemical Cor-

1 Firestone’s subsidiaries and affiliates are: ASC/AWI Inc.;

Brema S.p.A.; Commercial Real Estate Development Inc.; Fire-

stone de la Argentina S.A.I.C.; Firestone Belgium S.A., N.V.;

Firestone Canada Inc. Dayton Tire Canada Ltd; Firestone (Cey-

lon) Limited; Firestone de Chile, S.A.I.C.; Firestone Credit Cor-

poration ; Firestone Deutschland GmbH-Engelhardt Reifen GmbH,

Engelhardt Reifen GmbH & Co.; Firestone East Africa (1969)

Limited; Firestone Far East Company; Firestone France S.A.;

Firestone Interamerica Company; Firestone International Develop-

ment S.p.A.; Firestone International Europe Inc. ; Firestone Inter-

national Sales Corporation; Firestone Malaya Sdn. Berhad; Fire-

stone N.Z. Limited-Firestone Tire & Rubber Company of New

Zealand Limited, Northern Tyre Company (1975) Limited; Fire-

stone Naderland B.V.-Pardel Autobanden-en Servicebaddrif B.V.;

Firestone Plantations Company-Lone Star Transport Lines Inc.;

Firestone Portuguesa S.A.R.L.; Firestone Puerto Rico Inc.; Fire-

stone Seandinavia A.B.; Firestone (Schweiz) A.G.; Firestone

Singapore Private Limited ; Firestone (Uganda) Limited ; Firestone

UK Limited-Albany Tyre Service Limited, Firestone Burleigh Ma-

poration (‘‘Occidental’’).’

rine Pneumatic Fendering Company Limited-Seiberli.g Rubber

Company (Great Britain) Limited, Tyre & Auto Service Limited,

Blackstripe Limited, Worldwide Carriers Limited ; Firestone Vene-

zolana C.A.-Nuevos Horizontes C.V.; Hamill de Mexico S.A. de

C.V.; Harbell Fire & Casualty Co. Ltd.-Xylos Assurance Limited ;

Harbel Tapper Corporation; Industria Firestone de Costa Rica

S.A.; Industria de Pneumaticos Firestone S.A.-Firestone del Para-

guay S.A.; L. & C. Marina Transport Ltd.-L. & C. II Limited, L &

C. III Limited; Liberian Metal Processing Incorporated; MHF

Ine. ; United States Liberia Radio Corporation ; United States Trad-

ing Company; and Wrexham Tyre Company Limited.

? Occidental Petroleum Corporation is the parent corporation of

over 500 subsidiaries, including Occidental Chemical Corporation.

The other major subsidiaries of Occidental Petroleum Corporation

are: Cities Service Company; Island Creek Coal Company; IBP,

Inc., formerly known as Iowa Beef Processors, Inc. ; Occidental Oil

& Gas Corporation; International Ore & Fertilizer Covporation;

Occidental Chemical Holding Corporation ; and Occidental Chemi-

cal Corporation.

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I. This Petition for Certiorari Should Be Granted

Because the Fifth Circuit’s Decision Limiting Dis-

trict Court Jurisdiction Is Contrary to This

Court’s Decision in Adamo and to Section 307(b)

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Il. This Petition for Certiorari Should Be Granted

Because the Fifth Circuit’s Decision That 40

C.F.R. §61.65(a) Is an Emission Standard for

Jurisdictional Purposes [Is Contrary to This

Court’s Decision in Adamo and to Section 112 of

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TABLE OF AUTHORITIES

CasEs : Page

*Adamo Wrecking Company v. United States, 434 U.S.

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American Textile Manufacturers Institute v. Donovan,

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*Federal Communications Commission v. American

Broadcasting Company, 347 U.S. 284 (1954) ... 7,8,9

Hooker Chemical Company v. United States, 642 F.2d

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PPG Industries, Inc. v. Harrison, 660 F.2d 628 (5th

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*United States v. Ethyl Corporation, 576 F. Supp. 80

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United States v. Ethyl Corporation, 761 F.2d 1153 (5th

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United States v. Occidental Chemical Corporation

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W. G. Cosby Transfer & Storage Cor). v. Froehlke,

480 F.2d 498 (4th Cir. 1973) .................. 14

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IN THE

Supreme Court of the United States

OcToBER TERM, 1985

No. 85-

FIRESTONE TIRE & RuBBER COMPANY and

OccIDENTAL CHEMICAL CORPORATION,

Petitioners,

Unrrep StaTEs OF AMERICA,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The decision of the United States Court of Appeals

for the Fifth Circuit is reported in United States v.

Ethyl Corporation, 761 F.2d 1153 (5th Cir. 1985).

The decision of the United States District Court for

the Middle District of Louisiana in United States v.

Occidental Chemical Corporation, (M.D. La. 1983), is

unreported; that decision is based on the opinion by

the same judge in United States v. Ethyl Corporation,

576 F. Supp. 80 (M.D. La. 1983). These three opin-

ions are reproduced in Appendix A.

JURISDICTIONAL STATEMENT

The judgment of the United States Court of Ap-

peals for the Fifth Circuit was entered on June 3,

1985. See United States v. Ethyl Corporation, 761 F.2d

at 1153. This petition for a writ of certiorari has been

timely filed pursuant to 28 U.S.C. §2101(c). This

Court’s jurisdiction is invoked pursuant to 28 U.S.C.

§ 1254(1).

STATUTORY AND REGULATORY PROVISIONS

The statutory and regulatory provisions relevant to

this petition are Sections 112, 113 and 307(b) of the

Clean Air Act, 42 U.S.C. §§ 7412, 7413, and 7607(b),

and 40 C.F.R. § 61.65(a). These provisions are repro-

duced verbatim in Appendices B and C.

STATEMENT OF THE CASE

This petition for certiorari is before the Court be-

cause the court below refused to apply this Court’s

decision in Adamo Wrecking Company v. United

States, 434 U.S. 275 (1978) to the case at bar. In-

stead of following binding precedent, the Fifth Cir-

cenit created a theory of adjudicatory authority that

directly contradicts Adamo. Because the Fifth Circuit

refused to follow an opinion of this Court and because

its opinion has a direct and substantial impact on 12

pending Clean Air Act enforcement actions, peti-

tioners’ writ should be granted.

ee ee

On July 7, 1983, the United States brought suit

against Firestone and Occidental alleging that peti-

tioners discharged vinyl chloride from relief valves in

violation of 40 C.F.R. § 61.65(a).* Jurisdiction was

based upon Section 113(b) of the Act, which author-

izes the Government to commence in federal district

court civil actions alleging violations of Section 112

of the CAA. 42 U.S.C. § 7413(b). The instant case

is one of at least 18 lawsuits filed by the Government

since 1982, charging numerous manufacturers of vinyl

chloride and polyvinyl chloride (‘‘PVC’’) with viola-

tions of 40 C.F.R. § 61.65(a). Although 6 of these

eases have settled,* 12 are still pending.’

740 C.F.R. § 61.65(a) states:

(a) Relief valve discharge. Except for an emergency relief

discharge, there is to be no discharge to the atmosphere from

any relief valve on any equipment in vinyl chloride service.

An emergency relief discharge means a discharge which could

not have been avoided by taking measures to prevent the dis-

charge. Within 10 days of any relief valve discharge, the

owner or operator of the source from which the relief valve

discharge occurs shall submit to the Administrator a report in

writing containing information on the source, nature and

eause of the discharge, the date and time of the discharge,

the approximate total vinyl chloride loss during the discharge,

the method used for determining the vinyl chloride loss, the

action that was taken to prevent the discharge, and measures

adopted to prevent future discharges.

2U.S. v. Air Products & Chemicals, Inc. (W.D. Ky. 1983) ; U.S.

v. Borden, Ine. (D. Mass. 1985) ; U.S. v. Shell Oil Company (E.D.

La. 1985) ; U.S. v. Conoco, Inc., No, 83-1916-E (W.D. Okla. 1985) ;

U.S. v. Conoco, Inc., No. EC-37-LS-P (N.D. Miss. 1985); U.S. v.

Conoco, Inc., No. 83-2518 (W.D. La. 1985).

°U.S. v. BFGoodrich, No. C82-1043-P(J) (W.D. Ky.); US.

v. BFGoodrich and Goodyear Tire and Rubber Company, No. 83-

1337-B (M.D. La.); U.S. v. BFGoodrich, No. C83-0456-L(A)

(W.D. Ky.); U.S. v. Borden, Inc., No. 83-982 (M.D. La.) ; U.S.

In the district court petitioners moved to dismiss

the complaints. Petitioners argued that 40 C.F.R.

§ 61.65(a) is not an emission standard, but a work

practice standard, based on the language of the regu-

lation, EPA enforcement memoranda interpreting

that reguiation, the relief sought by EPA in the in-

stant and other enforcement actions, and the type of

evidence r quired from the Government to prove that

a defendaat violated Section 61.65(a). Under con-

trolling Supreme Court precedent, if Section 61.65(a)

is a work practice standard, it is unenfer*able, and

the complaints against petitioners must be aismissed.

Adamo Wrecking Company v .United States, 434

U.S. at 285-89.

On October 7, 1983, the district court held that 40

C.F.R. § 61.65(a) was a work practice standard and

dismissed the litigation; the district court followed its

previous epinion in United States v. Ethyl Corpora-

tion, 576 F. Supp. at 80. The Government appealed

both decisions, and the cases were consolidated on

appeal. On June 3, 1985, the Fifth Circuit reversed

the district court, holding that Section 307(b) (2) of

the Act, 42 U.S.C. § 7607(b)(2), prohibited the dis-

trict court from determining that 40 C.F.R. § 61.65(a)

is not an emission standard within the meaning of

Section 112. United States v. Ethyl Corporation, 761

v. Borden, Inc. and Menochem, Inc., No. 83-744-B (M.D. La.) ;

U.S. v. Georgia Pacific Corporation, No. 84-457-B (M.D. La.) ;

U.S. v. PPG Industries, Ine., No. CV 48-0331 (W.D. La.); U.S.

v. The Dow Chemical Company, No. 85-294-A (M.D. La.) ; U.S. v.

Formosa Plastics Corp., La. and ICI Americas, Inc., No, 84-78-B

(M.D. La.) ; and United States v. The Dow Chemical Company,

No. H-85-4665 (S.D. Tx.).

F.2d at 1153-55. The court of appeals distinguished

Adamo from this litigation on only one ground, viz.,

that Adamo involved a criminal prosecution, while

the claims against petitioners are civil in nature. Jd.

at 1155-56.

There is no material difference between this suit

and Adamo. Like Adamo, this case involves a district

court determination that a regulation sought to be

enforced is a work practice standard, not an emission

standard, and therefore is unenforceable. As in Ada-

mo, the appellate court reversed, claiming that the

district court lacked jurisdiction to determine that

the regulation is not an emission standard. As in

Adamo, this Court should grant the writ sought by

petitioners, reverse the court of appeals, and rein-

state the opinion of the district court.

REASONS TO GRANT WRIT

I. This Petition for Certiorari Should Be Granted Because the

Fifth Circuit’s Decision Limiting District Court Jurisdiction

Is Contrary to This Court’s Decision in Adamo and to

Section 307(b) of the Act.

The Fifth Circuit erroneously held that Section 307

(b) of the Act deprived the district court of juris-

diction to examine the complaint before it and deter-

mine whether the regulation the Government seeks to

enforce is an emission standard. United States v.

Ethyl Corporation, 761 F.2d at 1154-55. Section 307

(b) of the Act provides, in pertinent part:

(b)(1) A petition for review of action of the

Administrator in promulgating any . . . emission

standard . . . under section [112] . . . may be

filed only in the United States Court of Appeals

for the District of Columbia.

* * * *

(2) Action of the Administrator with respect

to which review could have been obtained under

paragraph (1) shall not be subject to judicial

review in civil or criminal proceedings for en-

forcement.

42 U.S.C. § 7607(b).* As this Court specifically held

in Adamo, Section 307(b)(2) ‘‘does not relieve the

Government of the duty of proving .. . that the regu-

lation allegedly violated is an emission standard.”

434 U.S. at 284. Such proof involves showing that the

regulation in question requires a ‘‘quantitative limit

on emissions’? rather than imposition of ‘‘pollution

contiol techniques.’’ Id. at 285-86. Because the Gov-

ernment must prove that 40 C.F.R. § 61.65(a) is an

emission standard, the district court a fortiort must

have jurisdiction to determine whether that regula-

tion is an emission standard. As the district court

correctly held, the Government failed to meet this

burden in the instant case. See United States v. Ethyl

Corporation, 576 F. Supp. at 86.

To deny the district court adjudicatory authority,

the court below seized upon the one difference be-

*The words ‘‘or requirement’’ have been deleted as they were

added to Section 307(b) in the 1977 amendments to the Clean Air

Act so that work practice regulations promulgated after enactment

of the amendments would be accorded the same treatment as emis-

sion standards. Adamo Wrecking Company v. U.S., 434 U.S. at 289.

It is undisputed that because the regulations at issue here were

promulgated before the 1977 amendments, see 41 Fed. Reg. 46,560

(1976), the words ‘‘or requirement’’ are not involved in this liti-

gation.

i Rite

tween Adamo and the instant case: the Government

filed a criminal complaint against Adamo, whiie it

filed civil actions against the petitioners here. United

States v. Ethyl Corporation, 761 F.2d at 1155-56.

Reliance on this distinction for jurisdictional pur-

poses is unsupported by the Act, contravenes a prior

opinion of this Court, and is belied by common sense.

By its terms, Section 307(b) permits judicial review

of the same subject matter in both ‘‘civil or criminal

proceedings for enforcement.’’ 42 U.S.C. § 7607(b)

(2). The Act itself provides no basis for denying the

district court jurisdiction to determine whether a reg-

ulation is an emission standard in civil litigation when

it provides authority to conduct th same inquiry in

a criminal enforcement proceeding.

Moreover, the statutory famework belies any in-

tent by Congress to provide adjudicatory authority in

criminal but not in civil enforcement proceedings.

There is no meaningful difference between the pen-

alties available in civil and criminal actions—in either

event the Act provides for penalties of up to $25,000

for each day the Clean Air Act is violated. Both types

of action are penal, and although prison sentences

may be imposed only for criminal convictions, such

sentences have not been sought by the United States

since Adamo, and to date have never been imposed

in litigation to enforce Section 112. 42 U.S.C. § 7413

(b) and (ec).

Furthermore, the Fifth Circuit’s decision is incon-

sistent with the unanimous opinion of this Court in

Federal Communications Commission v. American

Broadcasting Company, 347 U.S. 284, 296 (1954). In

that litigation, this Court held that statutory provi-

sions must be accorded the same construction in both

criminal and civil enforcement proceedings. Rejecting

the interpretation of the statute sought by the Com-

mission, this Court stated :

It is true, as contended by the Commission, that

these are not criminal cases, but it is a criminal

statute that we must interpret. There cannot be

one construction for [civil enforcement] . . . and

another for [criminal enforcement] .... If we

should give § 1304 the broad construction urged by

the Commission, the same construction would like-

wise apply in criminal cases. We do not believe

this construction can be sustained . . . it would

do violence to the well-established principle that

penal statutes are to be construed strictly.

The decision by the court below denying the district

court the authority to determine whether 40 C.F.R.

§ 61.65(a) is an emission standard, merely because the

instant case is a civil rather than criminal enforce-

ment proceeding, is contrary to law and should be

reversed.

Indeed, the Fifth Cireuit’s decision makes no sense;

it withholds from Firestone, Occidental, and other de-

fendants charged with innocent or negligent violations

of the Act a right accorded those charged with know-

ingly or intentionally conducting the same activity.

Under the Act, the same facts, e.g., relief valve dis-

charges allegedly regulated by 40 C.F.R. § 61.65(a),

provide the basis for either a criminal or civil en-

forcement action; the only statutory distinction be-

tween civil and criminal enforcement is one of intent.

42 U.S.C. § 7413(b) and (c). Pursuant to Adamo, a

defendant charged with deliberately discharging vinyl

chloride into the atmosphere from a relief valve is

—_

free to allege—and the district court has authority to

decide—that 40 C.F.R. § 61.65(a) is not an emission

standard. Under the Fifth Circuit’s decision in this

case, however, a defendant charged with an inadver-

tent relief valve discharge is prohibited from raising,

and the district court is precluded from entertaining,

the same claim. This result is irrational, contrary to the

decision of this Court in Federal Communications Com-

mission Vv. American Broadcasting Company, supra, and

in direct conflict with the Third Circuit’s opinion in

Hooker Chemical Company v. United States, 642 F.2d

48, 53 n.3 (3d Cir. 1981).° The district court’s ad-

judicatory authority is identical in civil and criminal

enforcement proceedings; the Fifth Circuit’s decision

to the contrary must be reversed.

5In Hooker the court dismissed as not justiciable Hooker’s claim

that EPA had improperly .issued a civil administrative enforce-

ment order pursuant to Section 113(a). 42 U.S.C. § 7413(a). The

court reached its conclusion by reasoning that, inter alia, Hooker

could raise an Adamo defense in an enforcement proceeding,

stating :

Hooker invokes Adamo Wrecking, supra, in challenging the

employment of §61.65(a) to support a §113(a) emission

standard violation. Because the §113 order has been with-

drawn, and Hooker would be able to raise the alleged infirmity

as a defense in enforcement proceedings, we would be render-

ing an advisory opinion to consider the matter on the merits

at this stage.

Id. (emphasis added). Thus, the Third Circuit decided—contrary

to the decision of the court below—that a district court has juris-

diction in civil enforcement proceedings such as the instant case to

determine whether a regulation is an emission standard within the

meaning of the CAA.

II. This Petition for Certiorari Should Be Granted Because the

Fifth Circuit’s Decision That 40 C.F.R. § 61.65(a) Is an

Emission Standard for Jurisdictional Purposes Is Contrary

to This Court’s Decision in Adamo and to Section 112 of

the Act.

As an afterthought, the Fifth Circuit held that

40 C.F.R. § 61.65(a) was ‘‘on its face’’ an emission

standard. United States v. Ethyl Corporation, 761

F.2d at 1157-58. That court, for some reason not

explained in its opinion, refused to conduct any mean-

ingful inquiry into the content of the regulation. :

Instead, it accepted the description of the regulation

contained in the Government’s brief, a description

inconsistent with EPA enforcement memoranda inter- |

preting that regulation. The Fifth Cireuit’s total

failure to conduct even a preliminary analysis into

EPA’s contemporaneous interpretation of its own reg-

ulation was patently erroneous and should be re-

versed. See American Textile Manufacturers Institute

v. Donovan, 452 U.S. 490, 539 (1981) ; Adamo Wreck-

ing Company v. United States, 434 U.S. at 287 n.5.

Unlike the Fifth Circuit, the district court con-

ducted the proper inquiry, and concluded that Section

61.65(a) as promulgated, interpreted, and enforced by

EPA is a work practice standard, not an emission

standard. United States v. Ethyl Corporation, 576 F.

Supp. at 86. That regulation states: ‘‘[e]xcept for :

an emergency relief discharge, there is tc be no dis-

charge to the atmosphere from any relief valve on :

any equipment in vinyl chloride service.’’ An emer- :

gency discharge is not described in traditional force

majeure language, but instead is defined as a dis-

charge that ‘‘could not have been avoided by taking

measures to prevent the discharge.’’ 40 C.F.R. § 61.65

eicmiieeimaiaaiiel

(a) (emphasis added). The regulation also requires a

facility that experienced a discharge to notify EPA

regarding ‘“‘the action that was taken to prevent the

discharge and measures adopted to prevent future

discharges.’’ Id. The regulation on its face is not an

emission standard because it does not establish a

‘quantitative limit on emissions.’’ Adamo Wrecking

Company v. United States, 434 U.S. at 286. Rather,

it requires utilization of “pollution control tech-

niques,’’ the hallmark of a work practice standard.

Id. at 285.

As the Fifth Circuit held in PPG Industries, Inc.

v. Harrison, 660 F.2d 628, 636 (5th Cir. 1981), the

reviewing court should determine what a regulation

requires by scrutinizing ‘‘the manner in which [EPA]

has applied the emission limitations. . . .’”” Had the

court of appeals conducted such an inquiry, it would

have reviewed the EPA enforcement memoranda, at-

tached in Appendix D, which demonstrate that the

agency interprets 40 C.F.R. § 61.65(a) to be a work

practice standard and enforces the regulation con-

sistent with this interpretation. For example, an EPA

enforcement directive dated April 24, 1979, from

EPA’s Director of Stationary Source Enforcement,

states that for a discharge to be permitted by 40

C.F.R. § 61.65(a):

As a minimum, the source would have to demon-

strate that the discharge could not have been pre-

vented by implementing any of the [following:]

1) employee training programs including instruc-

tion on emergency procedures,

2) equipment inspection and maintenance pro-

grams,

3) proper design and operation of process and

control equipment, and

4) installation and operation of all control equip-

ment needed to comply with the vinyl chloride

standard.

The directive continues:

The preamble to the proposed vinyl chloride stand-

ard lists, on page 59539, several measures a source

can reasonably be expected to take to prevent re-

lief valve discharges. Measures which can be taken

to prevent discharges from PVC reactors include,

but are not limited to, the following:

1) properly instrumenting the reactors to detect

upset conditions,

2) injectiug chemicals to stop the polymerization

reaction during upset conditions,

3) venting the reactor contents to a gasholder dur-

ing upset conditions and ultimately to a re-

covery system,

4) providing employees with improved training on

preventing and handling upset conditions, and

5) maintaining a backup source of power.

These measures are derived almost verbatim from

the preamble to Section 61.65(a). See 40 Fed. Reg.

59,539 (1975).

Another EPA enforcement memorandum, dated

March 14, 1980, states:

Not all relief valve discharges can be prevented.

The intent of the regulation was that if a plant

took steps such as those named above and still

had a relief valve discharge, that relief valve dis-

charge would be considered an emergency condi-

tion and would not be a violation.

(Emphasis added.)

These memoranda conclusively reveal that relief

valve discharges are expected; no regulated facility

can or is required to reduce such discharges to zero.

Owners and operators of regulated facilities must

perform specific work practices, however; otherwise,

discharges are deemed violations of 40 C.F.R. § 61.65

(a). Consequently, none of the 12 complaints in the

pending vinyl chloride cases seek injunctions requir-

ing that discharges be limited to any specific quantity

of vinyl chloride; instead, they all request imposition

of work practices. For example, the complaint in this

action seeks, inter alia:

(b) A permanent injunction requiring the instal-

lation of any necessary monitoring and/or con-

tainment equipment to prevent discharges of vinyl

chloride, the development of a preventive inspec-

tion and maintenance plan for equipment in vinyl

chloride service, an improved program for investi-

gating and preventing relief valve discharges, the

issuance of written publicized procedures for op-

erators to prevent or ameliorate relief valve dis-

charges and the establishment of frequent operator

training sessions[. ]

This request for specific work practices, identical in

all 12 of the cases pending to enforce 40 C.F.R.

§ 61.65(a), shows that that regulation is a work prac-

tice standard, not an emission standard. The Fifth

Circuit’s refusal to even consider EPA enforcement

memoranda and enforcement practices and interpret

40 C.F.R. § 61.65(a) consistent therewith was con-

trary to law and should be reversed by this Court.

See, e.g., Community for Creative Non-Violence v.

Watt, 670 F.2d 1213, 1216 (D.C. Cir. 1982); PPG

Industries, Inc. v. Harrison, 660 F.2d at 636; W. G.

Cosby Transfer & Storage Corp. v. Froehlke, 480

F.2d 498, 501-02 (4th Cir. 1973).

CONCLUSION

Because the decision of the court below is contrary

to Supreme Court precedent and the Clean Air Act

and has a substantial impact on these and many other

pending enforcement actions, this petition for certio-

rart should be granted.

Respectfully submitted,

*Gary H. Batse

ALBERT J. BEVERIDGE IIT

RoBERT BRAGER

BEVERIDGE & Dramonp, P.C.

1333 New Hampshire Ave., N.W.

Washington, D.C. 20036

(202) 828-0281

Attorneys for Petitioner

Firestone Tire < Rubber Company

STEPHEN S. LIVINGSTON

THOMPSON & KNIGHT

3300 First City Center

Dallas, TX 75201

(214) 969-1700

Attorney for Petitioner

Occidental Chemical Corporation

*Counsel of Record

APPENDICES

(i)

INDEX TO APPENDICES

APPENDIX A: Cass on AppEaL

1. United States of Americ» ~. Ethyl Corporation, 761

PE I UE I, IED nino wn seccweesecccncces la

2. United States of America v. Occidental Chemical

Corporation and Firestone Tire & Rubber Com-

pany, Transcript of Hearing (Oct. 7, 1983) ... .. 12a,

3. United States of America v. Ethyl Corporation, 576

a MU: DO Coe BM. TER) onc cccccccccccccencs 24a

APPENDIX B: Crean Arm Act

RE alia oe 36a

@. 49 UGC. $ 7418(b) & (6) ......... cece eee e eee 4la

Nee ee ees ss censnoesttecence 44a

APPENDIX C: Crieaw Am Act Recutations

ES ee ey 46a

APPENDIX D: Crean Am Act EPA Ewnrorcement

MEMORANDA

1. EPA Memorandum dated April 24, 1979 from Ed-

ward Reich, Director of Stationary Source En-

forcement to Lawrence Goldman, Chief of Enforce-

ment Branch, Region I re Viny! Chloride Relief Valve

Discharges from PVC Reactors - Borden Chemical. 47a

2. EPA Memorandum dated March 14, 1980 from *

David Hawkins, Assistant Administrator for Air,

Noise and Radiation from Rebecca Hanmer, Re-

gional Administrator, Region IV re Vinyl Chloride

Standard - Safety Relief Valve Discharges ....... 50a

‘

—e

APPENDIX A

UNITED STATES COURT OF APPEALS,

FIFTH CIRCUIT.

Nos. 83-3537, 33-3656.

Untrep States or AMERICA,

Plaintiff-Appellant,

Vv.

Ernuyt Corporation,

Defendant-Appellee.

Unrtep States or AMERICA,

Plaintiff-Appellant,

Vv.

OccwpentaL CHemicaL CcRPORATION and

Frmestone Tree anp Russer Co.,

Defendants-A ppellees.

June 3, 1985.

United States Environmental Protection Agency insti-

tuted civil enforcement proceedings in Federal District

Court against two companies seeking damages and in-

junctive relief on claim that companies had exceeded

allewable emission levels of vinyl chloride and polyvir7l

chloride under manual vent valve and relief valve regula-

tions promulgated under Clear Air Act. The United States

District Court for the Middle District of Louisiana, John

V. Parker, Chief Judge, 576 F.Supp. 80, entered an order

lismissing complaints for failure to state a claim upon

finding that regulations had been promulgated in excess

of EPA’s authority under Clean Air Act. An appeal was

taken. The Court of Appeals, Goldberg, Circuit Judge,

held that District Court lacked subject-matter jurisdiction

to consider substantive validity of regulations.

Reversed and remanded.

Stanford O. Bardwell, Jr., U.S. Atty., Baton Rouge,

La., Anne 8. Almy, Robert L. Klarquist, Appellate Sec-

tion, Ruth McQuade, Environmental Enforcement Sex ‘ion,

Land & Nat. Resources Div., U.S. Dept. of Justice, Wash-

ington, D.C., R. Gordon Kean, Baton Rouge, La., for

plaintiff-appellant.

Richard Marshall Lavers, Baton Rouge, La., Baker and

Botts, F. Walter Conrad, Jr., Martin L. McGregor, Hous-

ton, Tex., for Ethyl Corp.

Stephen S. Livingston, Carolyn M. Brown, Dallas, Tex.,

Horace C. Lane, Baton Rouge, La. for Occidental

Chemical.

Gary H. Baise, Robert Brager, Washington, D.C., for

Firestone.

Appeals from the United States District Court for the

Middle District of Louisiana.

Before CLARK, Chief Judge, GOLDBERG and RU-

BIN, Circuit Judges.

GOLDBERG, Circuit Judge:

The United States Environmental Protection Agency

(‘‘EPA’’) instituted these two consolidated civil enforce-

ment proceedings in federal district court, one against

appellee Ethyl Corporation, the other against appellees

Occidental Chemical Corporation and Firestone Tire and

Rubber Company. The EPA sought damages and injunc-

tive relief, claiming that the companies had exceeded the

allowable emission levels of vinyl chloride and polyvinyl

chloride under the manual vent valve and relief valve

regulations published at 40 C.F.R. 4$ 61.64(a)(3), 61.65

(a)(1984).* The district court ruled that the regulations

had been promulgated in excess of the EPA’s authority

under the Clean Air Act (‘‘Act’’) §112, 42 U.S.C. § 7412

(1982), and therefore dismissed the complaints for failure

to state a claim under Fed.R.Civ.P. 12(b)(6). Because the

district court lacked subject matter jurisdiction to con-

sider the substantive validity of the regulations, we

reverse.

In 1970, Congress amended the Clean Air Act to author-

ize the Administrator of the EPA to promulgate national

‘‘emission standards’’ for hazardous air pollutants.* Pub.

The language of § 61.64(a)(3) and § 61.65(a) is identical ex-

cept as to the substance being discharged (‘‘polyvinyl chloride’’

versus ‘‘vinyl chloride’’) and the type of valve involved (‘‘manual

vent valve’’ versus ‘‘relief valve’’). The latter provision states in

pertinent part:

‘a) Relief valve discharge. Except for an emergency relief

discharge, there is to be no discharge to the atmosphere from

any relief valve on any equipment in vinyl chloride service.

An emergency relicf discharge means a discharge which could

not have been avoided by taking measures to prevent the dis-

charge.

40 C.F.R. § 61.65(a).

? As defined in the 1970 amendments, ‘‘ [t]he terms ‘hazardous

air pollutant’ means an air pollutant to which no ambient air

quality standard is applicable and which in the judgment of the

Administrator may cause, or contribute to, an increase in mor-

tality’’ or serious disease. Pub.L. No. 91-604, § 112, 84 Stat. 1685

(1970). While the 1977 Clean Air Act Amendments altered that

definition, see 42 U.S.C. § 7412(a)(1), vinyl chloride and poly-

vinyl chloride were listed as hazardous air pollutants at the time

of appellants’ alleged violations between 1977 and 1982, 40 Fed.

L. No. 91-604, § 112/b)(1)(B), 84 Stat. 1685 (1970) (co-

dified as amended at 42 U.S.C. § 7412(b)(1)(B) (1982)).

Section 112 directed the Administrator to publish a list

of hazardous air pollutants and to prescribe for each an

emission standard affording an ample margin for safety.

42 U.S.C. § 7412(b)(1)(A), (B). Emission standards limit

the amount of hazardous air pollutants that can be dis-

charged into the environment. Unlike ‘‘work practice

standards,’’ emission standards do not tell companies how

to discharge—they only say how much. Under the 1970

amendments, the EPA was permitted to promulgate only

emission standards, not work practice standards.*

As with most congressional delegations of lawmaking

by rule, the Act left it to the Administrator to pour

content into these relatively broad concepts. The statute

was and is clear about one thing, however: an emission

standard is subject to judicial review only in the United

States Court of Appeals for the District of Columbia,

and only if the petition for review is filed within sixty

Reg. 59,477 (1975), and they remain listed as such, 41 Fed.Reg.

46,564 (1977) (codified at 40 C.F.R. § 61.60 (1984)).

*In 1977, Congress amended section 112 to authorize the Admin-

istrator to dictate the ‘‘how’’ as well as the ‘‘how much.’’ The new

section 112 authorizes the promulgation of work practice standards

where it is ‘‘not feasible’’ to prescribe numerical emissions limita-

tions either because the hazardous pollutant cannot be emitted

through a conveyance or cannot be measured. Pub.L. 95-95, § 112

(e)(1), (2), 92 Stat. 791 (1977) (codified at 42 U.S.C. § 7412(e)

(1), (2)). While the Administrator can now promulgate a ‘‘de-

sign, equipment, work practice or operational standard’’ as well as

an emission standard, work practice standards promulgated prior

to the effective date of the 1977 amendments are invalid for being

in excess of the Administrator’s authority under the Act. PPG

Indus. v. Harrison, 660 F.2d 628, 636 (5th Cir. 1981).

days of the Administrator’s action. Id. §7607(b)(1).

Given this limited forum for judicial relief, the statute

further contains a preclusive review provision, which

states that any ‘‘[a]ction of the Administrator with re-

spect to which review could have been obtained under

paragraph (1) shall not be subject to judicial review in

civil or criminal proceedings for enforcement.’’ Jd. § 7607

(b)(2). In the present case, the Administrator’s ‘‘action’’

occurred on October 20, 1976, when the vinyl and poly-

vinyl chloride regulations were promulgated. See 41 Fed.

Reg. 46,564 (1976).* Appellees, however, did not challenge

the substantive validity of the regulations until 1983,

when they filed their motions to dismiss in the present

enforcement actions. At least on its face, taen, section

307(b) divested the district court of jurisdiction to pass

on the substantive validity of these regulations over five

years after they should have been contested, if at all.

LTuckie v. EPA, 752 F.2d 454, 456-57 (9th Cir.1985) ; United

States v. Borden, Inc., 572 F.Supp. 684, 690-91 (D.Mass.

1983); see Lubrizol Corp. v. Tram, 547 F.2d 310, 311-19

(6th Cir. 1976).

Our inquiry might have ended here were it not for the

Supreme Court’s decision in Adamo Wrecking Co. v.

United States, 434 U.S. 275, 98 S.Ct. 566, 54 L.Fid.2d 538

*Prior to the 1977 amendments, this time period was 30 days.

See Pub.L. No. 91-604, § 307(b) (1), 84 Stat. 1676 (1970) (cur-

rent version at 42 U.S.C. § 7607(b)(1) (1982)).

* Although the Administrator has recommended revising the

vinyl chloride regulations, see 50 Fed.Reg. 1182 (1985) (to be

codified at 40 C.F.R. pt..61) (proposed Jan. 9, 1985), the proposed

regulations, if adopted, would not affect these enforcement actions.

See, e.g., National Indep. Coal Operators’ Ass’n v. Kleppe, 423 U.S.

388, 393 n. 4, 96 S.Ct. 809, 812 n. 4, 46 L.Ed. 580 (1976) ; First

Nat’l Bank of Lamarque v. Smith, 610 F.2d 1258, 1262-63 (5th

Cir. 1980).

(1978). In Adamo Wrecking, the Court held that, despite

the clear language of section 307(b), a criminal defend-

ant charged with violating an EPA emission standard

under section 113(c) of the Act, 42 U.S.C. §$7413(c)(1)

(C), could challenge the Administrator’s designation of

the regulation as an emission standard. 434 U.S. at 284-85.

Seizing this opening for judicial review, the court below

ruled that the vinyl and polyvinyl regulations are emis-

sion standards in name only. 576 F.Supp. 80, 86 (M.D.La.

1983). In the district court’s view, the regulations, rather

than merely prescribing a numerical limit for relief valve

discharges of vinyl chloride, instead required compliance

with specific work practices. The court reasoned that, since

the determination of whether a discharge ‘‘could not have

been avoided’’ turned on the companies’ compliance or

noncompliance with certain work practices, the regulation

could not fairly be termed an emission standard solely

by virtue of its ‘‘no discharge’’ requirement. Since the

agency lacked authority to promulgate work practice

standards at the time these regulations were promul-

gated,* the district court held the regulations to be invalid

and hence dismissej the complaints.

Adamo Wrecking, however, does not control this case.

To the contrary, the Court rested its holding in Adamo

on the nature of a criminal prosecution and the attendant

unfairness that would result from disallowing a district

court to assess the validity of a regulation whose violation

would incur the possibility of severe fines and imprison-

ment. The Court’s opinion implicitly acknowledged that,

had it not been for the totality of the Act’s structure with

regard to criminal enforcement proceedings, the clear lan-

guage of section 307(b) would have compelled a finding

that Congress intended to divest the federal courts of

jurisdiction over section 112 challenges in all enforcement

* See note 3 supra.

proceedings, criminal as well as civil. See Adama Wreck-

ing, 434 U.S. at 284, 98 S.Ct. at 572. The Court’s ratio

decidendi was unambiguous:

Simce Congress chose to attach these stringent

[criminal] sanctions to the violation of an emission

standard, in contrast to the violation of various other

kinds of orders that might be issued by the Adminis-

trator, it is crucial to determine whether the Ad-

ministrator’s mere designation of a regulation as an

‘emission standard’ is conclusive as to its character.

Id. at 283, 98 S.Ct. at 572 (emphasis added). In addition,

faced with an admittedly unclear indication of the con-

gressional intent underlying section 307(b)’s preclusive

effect in criminal prosecutions, the Court further relied

on ‘‘the familiar rule that, ‘where there is ambiguity in

a criminal statute, doubts are resolved in favor of the

defendant.’’’ Id. at 285, 98 S.Ct. at 572-73 (citations

omitted). Neither rationale is applicable in the context of

civil proceedings. In light of section 307(b)’s clear lan-

guage and Congress’s manifest intent to avoid protracted

and inconsistent adjudications over the validity of EPA

emission standards,’ we would be remiss to allow the

"The Senate Report observed that prompt resolution of certain

EPA actions in a single judicial forum was desirable ‘‘[b]ecause

many of these administrative actions are national in scope and re-

quire even and consistent national application.’’ S.Rep. No. 1196,

91st Cong., 2d Sess. 441 (1970); see also Adamo Wrecking, 434

U.S. at 284, 98 S.Ct. at 572 (noting § 307(b) (2)’s ‘‘twin congres-

sional purposes of insuring that the substantive provisions of the

standard would be uniformly applied and interpreted and that the

circumstances of its adoption would be quickly reviewed by a single

court intimately familiar with administrative procedures’’) ; Chry-

sler Corp. v. EPA, 600 F.2d 904, 910-12 (D.C.Cir. 1979) ; Lubrizol

Corp. v. Train, 547 F.2d 310, 311-17 (6th Cir.1976) ; Natural Re-

sources Defense Council, Inc. v. EPA, 512 F.2d 1351, 1353-56 (D.C.

narrow holding of Adamo Wrecking to bulldoze the stat-

ute’s jurisdictional limitations in civil enforcement pro-

ceedings. Cf. Yakus v. United States, 321 U.S. 414, 64

Cir.1975) ; Granite City Steel Co. v. EPA, 501 F.2d 925, 926 (7th

Cir. 1974).

This assessment of congressional intent echoes our recent deci-

sion in RSR Corp. v. Donovan, 747 F.2d 294 (5th Cir.1984). In

RSR Corp., we examined the effect of § 6(f) of the Occupational

Safety and Health Act of 1970 (‘‘OSHA’’), 29 U.S.C. § 655(f)

(1982), which constitutes the exciusive vehicle for pre-enforcement

review of standards promulgated under OSHA, but which does not

speak to the preclusive effect of that act on a federal court’s juris-

diction to hear regulatory challenges that arise in the context of

OSHA enforcement proceedings. We stated that

when an employer has participated in the rulemaking and pre-

enforcement review of an OSHA regulation and could have

then asserted either a substantive or procedural challenge to

its validity, but did not, and has no excuse for its failure to

do so, we will not entertain the challenge in an enforcement

proceeding.

747 F.2d at 302. A fortiori, to the extent we discerned that Con-

gress intended to foreclose judicial review under the circumstances

of RSR Corp., there is little room for doubt regarding congres-

sional intent where, as here, the relevant statute speaks not only

to the existence and nature of pre-enforcement review but also to

the non-existence of enforcement-cum-review. Compare, e.g., Shell

Oi Co. v. FERC, 707 F.2d 230, 235 (5th Cir.1983) (‘‘ Anyone ag-

grieved by a rule established in a rulemaking must challenge it

within the prescribed appeal period or forever hold his peace.’’)

with Texas v. United States, 749 F.2d 1144, 1146-47 (5th Cir.1985)

(construing 60-day provision for judicial review in Administrative

Orders Review Act of 1950 (‘‘Hobbs Act’’), 28 U.S.C. § 2344

(1982), not to preclude all substantive challenges to rule’s validity

when the rule is later applied).

* Concurring in Adamo Wrecking, Justice Powell expressed con-

cern over the due process implications of section 307(b)’s jurisdic-

S.Ct. 660, 88 L.Ed. 834 (1944) (upholding previous at-

tempt by Congress, in the context of criminal enforcement

proceedings, to require that the validity of regulatory

action be challenged in a particular court at a particular

time).

Moreover, even if Adamo Wrecking were applicable to

the case at hand, we would at most be allowed to inquire

whether the regulations constitute emission standards on

their face. Assuming for the moment that this limited

inquiry is warranted, we take heed of the Court’s caution-

ary words in Adamo Wrecking:

tional limitations, at least in the context of a criminal prosecution.

434 U.S. at 289-91, 98 S.Ct. at 575-76 (Powell, J., concurring) ; see

also id. at 293 n.*, 98 S.Ct. at 577 n.* (Stewart, J., dissenting).

Like the Court in Adamo Wrecking, we are not presented with

any challenge based on the due process theory that section 307(b)

affords interested parties inadequate notice. Se. Varrison v. PPG

Indus., 446 U.S. 578, 592 n. 9, 100 S.Ct. 1889, 1897 n. 9, 64 L.Ed.

2d 525 (1980); id. at 594, 100 S.Ct. at 1898 (Powell, J., concur-

ring). Appellees have not raised the issue, and indeed they would

probably lack standing to do so, since each of the three companies

was on actual notice and participated in the comment proceedings

that accompanied the promulgation of these regulations. Cf. Nat-

ural Resources Defense Council, Inc. v. EPA, 673 F.2d 400, 406-07

(D.C.Cir.), cert. denied, 459 U.S. 879, 103 S.Ct. 175, 74 L.Ed.2d

143 (1982).

* Where appropriate, such inquiries often entangle courts in the

somewhat paradoxical endeavor of considering the merits of a dis-

pute—for instance, whether a regulation is substantively valid as

an emission standard or invalid as a work practice standard—in

order to ascertain whether jurisdiction over the dispute exists in

the first place. This intertwining of substantive and jurisdictional

issues, however, is not an uncommon feature of answering the juris-

dictional question. See, e.g., EI. du Pont de Nemours & Co. v.

Tram, 430 U.S. 112, 125, 97 S.Ct. 965, 973, 51 L.Ed.2d 204 (1977) ;

Louisiana Chemical Ass’n v. Bingham, 657 F.2d 777, 782 & n. 7

(5th Cir. 1981).

10a

We are aware of the possible dangers that flow from

this interpretation; district courts will be importuned,

under the guise of making a determination as to

whether a regulation is an ‘‘emission standard,’’ to

engage in judicial review in a manner that is pre-

eluded by § 307(b)(2) of the Act. This they may not

do. The narrow inquiry to be addressed by the court

in a criminal prosecution is not whether the Adminis-

trator has complied with appropriate proce ‘ures in

promulgating the regulation in question, .. whether

the particular regulation is arbitrary, capricious, or

supported by the administrative record. Nor is the

court to pursue any of the other familiar inquiries

which arise in the course of an administrative review

proceeding. The question is only whether the regu-

lation which the defendant is alleged to have violated

is on its face an ‘‘emission standard’’ within the

broad limits.of the congressional meaning of that

term.

434 U.S. at 285, 98 S.Ct. at 573. In answering this ques-

tion, we have no trouble labeling the regulations as emis-

sion rather than work practice standards since each sets

a ‘‘no discharge’’ cap on the amount of vinyl chloride and

polyvinyl chloride that can be emitted. Where the regula-

tions can be violated only by transgressions of this purely

numerical discharge requirement, it cannot be said that

the regulations are not on their face emission standards,

or, more to the point, that the Administrator’s characteri-

zation of them as such is unreasonable, see, e.g., Chevron,

U.S.A., Inc. v. Natural Resources Defense Council,

U.S. ——, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984) ;

Columbia Broadcasting System, Inc. v. Democratic Na-

tional Committee, 412 U.S. 94, 121, 93 S.Ct. 2080, 2085,

36 L.Ed.2d 772 (1973) ; Red Lion Broadcasting Co. v. FCC,

395 U.S. 367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371

(1969) ; Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792,

lla

801, 13 L.Ed.2d 616 (1965); PPG Industries v. Harrison,

660 F.2d 628, 633 (5th Cir.1981). Accord Luckie, 752 F.2d

at 456-57; Borden, 572 F.Supp. at 691.

Thus, to the extent section 307(b) requires us to deter-

mine as a preliminary matter whether these EPA regula-

tieus are emission standards, we hold for purposes of that

jurisdictional inquiry that they are. The district court

was consequently without jurisdiction to pass on the sub-

stantive validity of sections 61.64(a)(3) and 61.65(a) un-

der the Clean Air Act, and the government, qua cleaner,

may press its suit.

REVERSED AND REMANDED.

12a

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF LOUISIANA

BATON ROUGE, LOUISIANA

Civil Action No. 83.723-A

Unrrep States or AMERICA

versus

Occomentat CuemicaL Corp., e¢ al

PROCEEDINGS

THE HONORABLE JOHN V. PARKER, Chief Judge,

Presiding

Friday, October 7, 1983

APPEARANCES:

Ms. Suetiy Zwick and Ms. Ruta Ann McQuapE

For the United States of America

Horace C. Lane, Esq. and Gary Baisz, Esa.

For Occidental Chemical Corporation

R. Gorvon Kean, Jz., Esq. and Srepnen Livrxcsron, Esq.

For Firestone Tire and Rubber Company

INDEX

Preliminaries ....... ccc cece ccccccccccscccccececens 3

Argument By Ms. McQuade .......-....+ee-eeeeees 3

Argument By Mr. Baise .............-eeeeseeeeeeee 5

Argument By Mr. Livingston ...........---++++++: 9

Argument By Ms. McQuade ..........--.0+seeeeees 10

Argument By Mr. Livingston ........--..++-+++-0++ 13

Ruling Of The Court .............65 seeeeeeeeeees 15

13a

[3] FRIDAY, OCTOBER 7, 1983

(Case was called and proceedings were begun.)

MR. KEAN: May it please the Court, before we com-

mence argument on the motions, may I address the Court?

THE COURT: Yes, indeed.

MR. KEAN: I would respectfully request that Mr.

Stephen Livingston of the firm of Thompson & Knight

in Dallas, Texas, be enrolled as counsel of record for

Occidental Chemical Corporation and further request that

Mr. Livingston be permitted to argue the motions today

on behalf of Occidental.

THE COURT: All right. He certainly will be accepted

as counsel for Occidental.

MS. ZWICK: Similarly, Your Honor, —Shelly Zwick

for the United States of America—I would like to intro-

duce to the Court at this time Ms. Ruth Ann McQuade

from the Department of Justice, Land and Natura! Re-

sources Section, who, with the Court’s permission, will

present oral argument on behalf of the Government today.

THE COURT: All right; we will accept Ms. McQuade.

MS. MC QUADE: Good morning, Your Honor. As you

know, the United States filed a complaint against Occi-

dental and Firestone on July 7, 1983; and since that time,

the defendants have filed motions to dismiss; and we re-

sponded in opposition to the motions to dismiss and also

asked, at [4] that time, for an expedited hearing on a

stay of the proceedings, including the defendants’ motions

to dismiss. There appears to be no dispute that it’s within

your discretion to grant a stay of these proceedings

pending——

THE COURT: But what do we really accomplish, Ms.

McQuade, by granting the stay of proceedings?

14a

MS. MCQUADE: Well, by doing so and waiting until

a final decision in the Ethyl case, then you prevent both

the defendants and the plaintiffs from having to go for-

ward with this case on idential issues to the decision in

Ethyl.

THE COURT: Well, it—All right; proceed.

MS. MC QUADE: The Supreme Court recognized, in

Landis versus North American Company, 29908248, 1936,

that the interests of judicial economy may be served by

staying proceedings in actions at a lower court level where

a pending decision by the appellate court in another case

may substantially affect the result of the state action.

And clearly, in light of the pending action or the appeal

in the Ethyl decision, with nearly identical issues which

will be controlling precedent in the case before us, it

would conserve the resources of the litigants; it would

conserve the resources of the court; no prejudice would

ensue to the defendants during the pendency of the ap-

peal; no further obligations; and by granting this stay,

again, I think that all of the resources would be con-

served at that point.

[5] THE COURT: Do you agree that the issues involved

here are identical to those in the Ethyl case?

MS. MCQUADE: Well, they involve the same section

in the code, yes, sir; 40CFR61.65(a). However, in the

Ethyl case, there were not any reporting violations, as

there are here.

THE COURT: Right; I understand. All right; let’s see

what the defendants have to say about your suggested

stay and the motions to dismiss.

MR. LANE: May it please the Court, I’m Horace Lane.

I’d like to introduce Mr. Gary Baise of the Washington,

D.C. bar, who will speak for Firestone.

THE COURT: All right.

15a

MR. BAISE: Your Honor, may it please the Court,

I’m Gary Baise. I must admit this is one of the few times

I have ever seen plaintiff move for a stay in an action.

Certainly, it’s one of the few times I’ve ever seen the

Government immensely concerned about conserving judi-

cial resources and litigants’ resources. If the Government

were so concerned about conserving resources, ——

THE COURT: Excuse me, just a moment.

MR. BAISE: Sure.

(Court conferred off-record with the law clerk.)

THE COURT: Proceed.

MR. BAISE: If the Government were so concerned

[6] about conserving litigants’ resources, it seems to me it

could have held off for another year and a half before the

statute of limitations would have run in this case, any-

way. Secondly, when the Government says that there’s no

harm that befalls the defendants, that’s just wrong. First

off, Firestone has to list this case as having been filed by

the Government with the Securities and Exchange Com-

mission; obviously, it does not want to have this case

hanging around and have to—necessarily have to list it

in its 10-K, in January of next year. So there is some

potential harm to Firestone, from that standpoint. Second-

ly, the Ethyi case is on appeal, we think. However, so

far as I know, in my discussions with Ms. McQuade, the

Solicitor General of the United States has not authorized

the appeal with respect to this matter. And I would like

to know, from the Government, whether or not there

has———

THE COURT: Well, is that a necessary step?

MR. BAISE: There’s been a notice filed and I had

personally called Ms. McQuade to attempt to determine

whether or not the Government is going to proceed, but

I don’t know that for a fact. Now, maybe she can clarify

l6a

the record at this point and tell us the Government is,

indeed, going to appeal. And finally, with respect to the—

even if the Government is going to appeal, Firestone

certainly—and Occidental—does not want to have a situa-

tion where it has [7] to depend solely on the representa-

tions of Ethyl and its counsel with respect to an issue

which may have considerable impact on Firestone. So we

think we’re entitled to——

THE COURT: In other words, you would rather do

something more than just file an amicus brief in the

Fifth Circuit?

MR. BAISE: That’s right; because, particularly, in this

case—-as you know from the filings we have presented to

the Court—we have submitted additional memoranda from

EPA which interperts this 61.65(a); and frankly, I submit

to you, Your Honor, that’s why the Government wants to

stay this case. They don’t want the material we have

submitted fo go up to the Court of Appeals at this point.

So that’s why——

THE COURT: Well, I wouldn’t accuse the Government

of playing dirty pool.

MR. BAISE: Well, I’m not accusing; I just said I

submit, for your consideration. So for all those reasons,

Your Honor, we think this matter shouldn’t be stayed.

And we would request, based on the Court’s earlier opin-

ion in Ethyl, the additional memoranda we have submitted

to the Court, which clearly spells out exactly how EPA

interprets this regulation, that we proceed with the hear-

ing on the motion to dismiss.

THE COURT: Have you seen this Massachusetts [8]

district court decision——

MR. BAISE: Yes, I have.

THE COURT: —that the Government has presented

us with?

17a

MR. BAISE: Yes. And clearly—and I talked to local

counsel with respect to that case yesterday, Your Honor—

from what I can gather and from talking to him and, also,

reading the case, your brethren on the bench there did not

have before him the—certainly, the memoranda that we

have placed before you. It is unclear as to whether or not

this court even had the Barber memoradum, which is

mentioned in the Ethyl case, before it. So I think there is

a good deal of factual information which would distin-

guish that judgment from the one before you. You clearly

have a more complete record before you than that court

had before it, based on my present understanding.

THE COURT: In other words, you conclude, as the

Government has said, ‘‘respectfully, that this case was

wrong,’’—the one from Massachusetts?

MR. BAISE: That’s right.

THE COURT: And that this court should net follow

that case in deciding this case?

MR. BAISE: I think not; because you have a much

better record before you than, apparently, that court had

before it.

[9] THE COURT: All right; I——

MR. BAISE: And after we finish arguing this matter

with respect to the motion to dismiss, Your Honor, I

suspect that I will provide you with some additional in-

formation which will assist you in buttressing any opinion

you want to issue with respect to this case which will,

in turn, buttress the Ethyl opinion.

THE COURT: All right; let’s see what Occidental has

to say.

MR. LIVINGSTON: Stephen Livingston for Occidental,

Your Honor. I have very little to add except I would like

to point ont that the primary argument of the Govern-

18a

ment, in favor of a stay as opposed to a dismissal, is that

it will conserve the resources of the parties, not having

to participate in an appeal. Well, the Government and,

probably, these same attorneys are going to be participat-

ing in that appeal; so they are speaking for us, I guess,

on our behalf to tell us that we ought to be able to con-

serve our resources. And I would like to say, on behalf

of Occidental, that we’d like to be up there on that appeal;

and we don’t want to have our resources conserved while

this question is being decided in the Fifth Circuit by other

parties. We’d like to participate in that appeal.

THE COURT: You, I take it, have the same view about

the Massachusetts decision; that it’s——

[10] MR. LIVINGSTON: Yes, Your Honor.

THE COURT: — interesting, but not binding?

MR. LIVINGSTON: Yes, Your Honor.

THE COURT: All right. Does the Government have

anything more to offer? Let me say, I have glanced

through this opinion from the Massachusetts « surt and,

certainly, the judge up there, as he certainly is entitled to,

did not agree with the conclusion that I came to in the

Ethyl case. I have not changed my mind relative to the

Ethyl-case and, being convinced that the issues are iden-

tical, my inclination is to grant the motions to dismiss.

I think that it would be desirable for us to take that

course as opposed to the stay because I think that the

Fifth Circuit would be better off having all views ex-

pressed on an appeal; and, certainly, there’s nothing that

I know of that would stop o consolidation. As a matter

of fact, their rules would require consolidation of these

cases, the Ethyl case and this case, for the handling of

the appeal. And since I’m not going to change my mind,

I really don’t see any need in perpetuating the situation

down here. I don’t see anything to be gained by it. If you

can tell me something else, I’ll be glad to listen to it.

19a

MS. MC QUADE: Well, I primarily wanted to clarify

a point raised by the defendants on whether or not, in

fact, an appeal has been filed. A notice of appeal was

filed on [11] August 29th, and a briefing schedule has

been set and the United States’ brief is due, I believe, on

the 7th of November; so that, in fact, that is going for-

ward. I’d also like to point out that the United States did

not have any devious motivation in applying for this stay

and——.

THE COURT: I’m sure that you didn’t.

MS. MC QUADE: —sought not to prevent them from

their appealing the case. And I will just state, on the

Borden decision by Judge Mazoni, that it’s unclear, at this

point, what documents he had before him in making that

decision. So I think it’s premature to say that his deci-

sion was not based on all the facts, as defendants would

claim.

THE COURT: Well, I would—You have something to

add, Ms. Zwick?

MS. ZWICK: I just wanted to mention something to

Ms. McQuade.

THE COURT: All right.

(Off-record discussion between Ms. Zwick and Ms. Mc-

Quade.)

MS. MC QUADE: Your Honor, you referred to being

inclined to grant the motions to dismiss. We haven’t

talked about the issue raised about attorneys’ fees in

that same motion to dismiss. Are you treating those sepa-

rately or together?

THE COURT: Well, I’m treating them pretty much

[12] together. I’ve read the motions; I’ve read every-

body’s arguments on attorneys’ fees; and I will tell you

that my feeling about the attorneys’ fees is that the

20a

Government is not unreasonable in bringing the actions.

I can see some argument—particularly, in Firestone’s

case, since Firestone doesn’t even have the plant any

more and could not possibly pollute the atmosphere be-

cause it doesn’t have the pollution material available—

but I don’t really think that it was unreasonable. The

Government certainly is free to disagree with the conclu-

sion that I came to in the Ethyl case; the Government is

certainly free to appeal that decision; and it’s certainly

free to take a different position in other courts and in

this court. Obviously, that decision doesn’t bind anybody

but me; and it’s binding on me only because I feel that

it’s correct. So it’s not really binding precedent, anyway

and so I certainly don’t see that the Government was

unreasonable; and I don’t think the defendants are en-

titled to attorneys’ fees. I will let them try to convince

me otherwise, if they think they can, in a few minutes.

But there’s——

MS. MC QUADE: Thank you, Your Honor.

THE COURT: —no need for you to address it because

I’m certainly convinced that the Government ought not

to be required to pay attorneys’ fees.

MS. MC QUADE: We certainly agree with that; thank

[13] you.

THE COURT: I’m sure that you do. Is there anything

new that you folks can address on the question of attor-

neys’ fees? I think you heard what I just told Ms. Mc-

Quade; that’s the way I look at it. And I think that,

under the circumstances, it was not an unreasonable act

by the Government to initiate these cases.

MR. BAISE: Your Honor, may I address this point

and one other additional point?

THE COURT: Yes.

21a

MR. BAISE: As I said earlier, it seemed to me that

the Government could have waited for some considerable

period of time—at least a year and a half—before it

brought its case against Firestone. By that time, surely,

it would have had its decision in Ethyl. Remember, they

brought the case against Firestone some seven days after

you handed down your decision. The Government makes

a good deal about the term ‘‘harassment’’ coming from

the legislative hisicry relating to the attorneys’ fees

section.

THE COURT: Well, I don’t think they’re harassing

you and [——

MR. BAISE: No; let me——

THE COURT: —don’t think harassment is a require-

ment. I agree that it’s a qaestion of ——

MR. BAISE: Well, that’s what the——

[14] THE COURT: —reasonableness——

MR. BAISE: —legislative history says——

THE COURT: —and I think that until they get an

appellate decision, finalizing this question, I think the

Government is entitlted to continue to file actions and

take the position that their regulations are valid and

enforceable. I don’t—I think they would probably be dere-

lict to take a district court decision and let that be the

final word. I think they owe more to their own regulations

than to do that. So I just don’t think it’s unreasonable

for them to file additional suits.

MR. BAISE: I don’t think it’s probably unreasonable

for them to file additional suits in other cases. I think it,

clearly, is unreasonable with respect to the Firestone case.

And let me just bring one other additional point to your

attention

THE COURT: Well, there is some merit in what you

say simply because you have sold the plant and——

22a

MR. BAISE: That’s right. We’re no longer in business,

that’s Number One. Number Two, they had a year and a

half. And Number Three—something that’s not brought

out in the briefs—that this industry now, for some several

years, has been trying to negotiate with EPA with respect

to what this relief valve discharge regulation means. And

in fact, some two and a half months ago, the now [15]

Deputy Assistant Administrator for Air Programs, Mr.

Sheldon Meyers, invited this industry, of which Firestone

used to be a part, to submit its views on the relief valve

discharge issue to the agency for consideration. I don’t

know whether anything will come from that. But the fact

is and the important thing is, that there has been an

invitation from the Government to review this, to look

at this, and, possibly, engage in negotiations with respect

to this particular section of the regulations. So I’m not

sure whether Ms. McQuade is aware of that because that

is a different section of the agency. But it seems to me,

when you look at the fact that—if she doesn’t, she should

—the Government is inviting us, at our suggestion, to

relook at this issue; then, go ahead and file a case like

this against Firestone—a company out of business, in this

particular area; a year and a half to go; negotiations

ongoing—then it does become unreasonable. So those are

the points I’d like for you to consider.

THE COURT: Well, I appreciate the points.

MR. BAISE: Sure.

THE COURT: I am still not convinced, though, because

I think that, as long as they’re going to sue Occidental,

they might as well piggyback you along with them. And I

just don’t think it’s unreasonable to do that. And it’s not

necessary for you to write any long opinion or [16] find-

ings or anything in this case. Basing my conclusion on the

case that I decided in United States v. Ethyl Corporation,

I sustain the motion to dismiss for both defendants; I

23a

deny the motion for the stay; and I deny attorneys’ fees

to either defendant. Thank you.

MR. LANE: Thank you, Your Honor.

MS. ZWICK: Thank you.

MR. BAISE: Thank you, Your Honor.

(Proceedings were concluded.)

I hereby certify that the above and foregoing is a true

and correct transcript from the record of the proceedings

in this matter, heard before The Honorable John V.

Parker, Chief Judge, on Friday, October 7, 1983, to the

best of my knowledge and ability.

October 24, 1983

/s/ Heven Bazzei

Helen Bazzell

Official Court Reporter

I certify transcript fees and format comply with those

prescribed by Court and Judicial Conference of the U.S.

/s/ Hevten Bazzevu

Helen Bazzell

Official Court Reporter

United States District Court

Middle District of Louisiana

24a

UNITED STATES DISTRICT COURT,

M.D. LOUISIANA.

Civ. A. No. 83-0120-A.

Unrrep States or AMERICA

Vv.

Erxyt Corporation.

July 1, 1983.

United States brought action against the company,

alleging violation of regulations governing the emergency

discharges of vinyl chloride. On the company’s motion to

dismiss, the District Court, John V. Parker, Chief Judge,

held that Environmental Protection Agency regulations

which govern emergency discharges of vinyl chloride and

which require compliance with work practices set out by

the EPA were work practice standards, despite their

designation as emissions standards, and because the regu-

lations were promulgated prior to the 1977 amendments

to the Clean Air Act which authorized the Administrator

to enforce work practice standards, the regulations were

unenforceable by the District Court.

Motion granted.

Ian Hipwell, Asst. U.S. Atty., Baton Rouge, La., for

plaintiff.

Ronald A. Seale, Seale, Smith & Phelps, Baton Rouge,

La., for defendant.

25a

JOHN V. PARKER, Chief Judge.

This matter is presently before the court on defendant’s

motion to dismiss for failure to state a claim upon which

relief can be granted. Each side has urged its position

in oral argument and has submitted additional briefs on

issues raised in argument. After carefully considering all

. the arguments and conducting its own research, the court

concludes that it has no choice but to grant the motion.

The complaint alleges that Ethyl Corporation dis-

charged vinyl chloride on at least 98 separate occasions

over a six year period from 1977 to 1982 from its Baton

Rouge, Louisiana, plant, all in violation of the Clean Air

Act, 42 U.S.C. § 7401, et seq. Specifically, the complaint

alleges that Ethyl discharged at least 168,622.7 pounds of

vinyl chloride to the atmosphere from relief valves on

equipment in vinyl chloride service on at least 81 separate

occasions—all in violation of 40 C.F.R. §$61.65(a). That

regulation provides that

Except for an emergency relief discharge, there is

to be no discharge to the atmosphere from any relief

valve on any equipment in vinyl chloride service. An

emergency relief discharge means a discharge which

could not have been avoided by taking measures to

prevent the discharge.

In addition, Ethyl additionally manually vented gas

containing at least 14,596 pounds of vinyl chloride from

valves on polyvinyl chloride reactors on 17 separate occa-

sions, thereby violating 40 C.F.R. 4 61.64(a)(3)--which

again prohibits discharges which could ‘‘have been avuid-

ed by taking measures to prevent’? them. The complaint

seeks to enjoin Ethyl from future violations of the vinyl

chloride regulations and to require that Ethyl develop

and implement a plan to prevent future discharges of

vinyl chloride. The government also seeks a civil penalty

26a

of $25,000 for each day that Ethyl violated the regulations

at issue.

The enforceability of these regulations depends upon

their characterization as ‘‘emission standards’’ or ‘‘work

practice’’ standards. Making that deceptively simple char-

acterization first requires a journey through the labyrinths

of the Clean Air Act.

Under Section 112 of the Clean Air Act the Administra-

tor of the Environmental Protection Agency (EPA) is au-

thorized to promulgate regulations setting emission stand-

ards for hazardous air pollutants. 42 U.S.C. § 7412. A

‘‘hazardous air pollutant’’ presently is defined as one ‘‘to

which no ambient air quality standard is applicable and

which in the judgment of the Administrator causes, or con-

tributes to, air pollution which may reasonably be antici-

pated to result in an increase in mortality or an increase

in serious irreversible, or incapacitating reversible, ill-

ness.’’ 42 U.S.C. § 7412(a) (1).

The Administrator designated vinyl chloride’ a haz-

ardous air pollutant in December, 1975. 40 Fed.Reg. 59477.

In October, 1976, he promulgated the emissions standards

for vinyl chloride. 41 Fed.Reg. 46560, now codified at 40

C.F.R. § 61.60 e¢ seq.

Discharging an air pollutant in violation of the appli-

cable emission standard is prohibited under Section 112(c)

(1)(B) of the Clean Air Act. 42 U.S.C. § 7412(c)(1)(B).

That violation subjects the violator to civil penalties and

an injunction under 42 U.S.C. §7413(b)(3). And the last

1 For a discussion of vinyl chloride, its uses in industry and its

effects upon those who are exposed to it, see, e.g., Society of the

Plastics Industry, Inc. v. Occupational Safety & Heaith Adminis-

tration, 509 F.2d 1301 (2d Cir.1975) ; Doniger, Federal Regulation

of Vinyl Chloride: A Short Course in the Law and Policy of Toxic

Substances Control, 7 Ecology L.Q. 497 (1978).

27a

passageway in this matrix lead to the controversial juris-

dictional bar. Under Section 307(b) of the Act:

(b)(1) A petition for review of action of the Admin-

istrator in promulgating any . . . emission standard

or requirement under Section 7412... may be filed

only in the United States Court of Appeals for the

District of Columbia. A petition for review of the Ad-

ministrator’s action in approving or promulgating any

implementation plan under section... . 7412(c) ...

which is locally or regionally applicable may be filed

only in the United States Court of Appeals for the

appropriate circuit.

(2) Action of the Administrator with respect to

which review could have been obtained under para-

graph (i) shall not be subject to judicial review in

civil or criminal proceedings for enforcement. 42 U.S.C.

§ 7607.

The reference to “*requirement’’ in 42 U.S.C. § 7607(b)

(1) was added in the 1977 technical amendments. Pub.L.

No. 95-190, 91 Stat. 1399. Prior to that time, the Admin-

istrator’s authority, the enforcement provisions, and the

jurisdictional limits all were couched in terms of ‘‘emis-

sions standards.’’ (See e.g., § 112(b)(1)(B), as exacted in

1970, Pub.L. No. 91-604, 84 Stat. 1676, §112(b)(1)(B)

(1970) which authorized the setting of ‘‘emission stand-

ards.’’) That language caused a split in lower court deci-

sions on whether work practice requirements were per-

mitted under the Act. Congress soon thereafter added Sec-

tion 112(e) which authorized work practice standards

where ‘‘it is not feasible to prescribe or enforce an emis-

sion standard.’’ 42 U.S.C. § 7412(e)(1) (West Supp. 1978).

This standard is set out in terms of ‘‘a design, equipment,

work practice, or operational standard, or combination

thereof’’ rather than in terms of limiting emissions. 42

28a

U.S.C. §1712(e)(i) (West Supp.1978). The Supreme

Court, in Adamo Wrecking Co. v. United States, 434 U.S.

275, 98 S.Ct. 566, 54 L.Ed.2d 538 (1978) interpreted this

sequence of events as an indication that authority to issue

requirements—or work practice standards—did not exist

prior to the 1977 amendments. 434 U.S. at 283-84, 98 S.Ct.

at 572.

Curiously, however, while the 1977 amendments gave the

Administrator the authority to promulgate work practice

regulations, he seemingly had no authority to enforce

them—the enforcement provision referred only to viola-

tions of ‘‘emission standards.’’ 42 U.S.C. § 7413(b); 434

U.S. at 306, 98 S.Ct. at 583. Congress again reacted and

added 42 U.S.C. § 7412(e)(5) in 1978 which provides that

‘‘fajny design, equipment, work practice, or operational

standard, or any combination thereof, described in this

subsection shall be treated as an emission standard for

purposes of the provisions of this chapter’’; 1.e., a work

practice standard equals an emissions standard for pur-

poses of enforcement. Pub.L. No. 95-623.

In PPG Industries v. Harrison, 660 F.2d 628, 636 (5th

Cir.1981), the court cited Adamo and held that the EPA

had authority to issue only emission standards before the

1977 amendments. While PPG concerned Section 111 of

the Act, the issues were analogous to that of the instant

case—whether the contested regulation was a work prac-

tice standard, and, if so, whether it was enforceable since

it was enacted prior to the 1977 amendments. The court

determined that the regulation was ‘‘a work practice or

operation standard beyond the statutory authority of the

EPA’’ and such requirements are enforceable only if

promulgated subsequent to the 1977 amendments. Id. While

the Administrator reminds us that we may not consider

the sufficiency of the regulation and argues that it is in-

deed an emission standard, we note the words of Justice

Rehnquist in Adamo Wrecking, ‘‘Congress ... did not em-

29a

power the Administrator, after the manner of Humpty

Dumpty in Through the Looking-Glass, to make a regula-

tion an emission standard by his mere designation.’’ 434

U.S. at 283, 98 S.Ct. at 572. Section 307 of the Act bars

judicial review of the sufficiency or appropriateness of a

regulation, but it does not bar the narrow inquiry as to

‘‘whether the regulation which the defendant is alleged to

have violated is on its face ‘an emission standard’ within

the broad limits of the congressional meaning of that

term.’’ 434 U.S. at 287, 98 S.Ct. at 573.

The regulations governing emergency discharges of vinyl

chloride were promulgated in October, 1976, prior to the

1977 amendments. 41 Fed.Reg. 46560, now codified at 40

C.F.R. § 6160 et seq.; specifically, 40 C.¥'.R. §§ 61.65(a) and

61.64(a)(3). Thus, those regulations may be enforced by

this court only if they are in fact emission standards and

not work practice regulations camouflaged under the rubic

of ‘‘emission standards.’’

Apparently, the two regulations covering emergency dis-

charges of vinyl chloride have been used for little but gath-

ering dust since their enactment. Few cases discuss the

work practice/emissions limitations dichotomy, and even

fewer concern vinyl chloride regulations.? The one reported

? While virtually no jurisprudence exists on this issux, a few

commentators have discussed the vinyl chloride regulations. Two

commentators writing after the Adamo decision characterized the

vinyl chloride standards as work practice standards which would

have to be repromulgated under the 1977 amendements. Citing

§ 61.65 specifically, Doniger matter of factly describes it as specify-

ing ‘‘the use of certain equipment and operational techniques.”’

Doniger, supra, at 566. (See other references to work practice regu-

lations for vinyl chloride at p. 567, n. 360; p. 568 n. 361; and p.

578.) Another commentator wrote that in some situations, a quanti-

tative limit on emissions ‘‘is not practical, either because measure-

ment techniques are available, or because emissions come from

many small points in a process and are most easily controlled by

30a

case discovered mentions the regulations at issue here, but

that case was dismissed on other grounds. Hooker Chemi-

cal Company v. United States Environmental Protection

Agency, 642 F.2d 48 (3d Cir.1981). Both sides have referred

to a case subsequently arising out of that litigation, United

States of An.crica v. Tenneco Chemicals, No. 80-4141 (D.

N.J. July 6, 1981), where the court, in an unpublished

opinion, disposed of numerous defenses raised by Tenneco

again under the same provision at issue here, but the court

did not mention whether the regulation was challenged as

being a work practice regulation. Thus the court now finds

itself in the uneasy position of plowing not really new

ground, but ground that has lain dormant these many

years.

The government argues that 40 C.F.R. §§ 61.65(a) and

61.64(a)(3)* are emission standards setting a quantifiable

limit of zero emissions but which also allow the violator

to assert an affirmative defense of emergency discharge

under certain conditions.

numerous equipment or work practice measures at those points.

The 1973 asbestos standard and the 1976 vinyl chloride standard

both included such measures.’” ENVIRONMENTAL LAW INSTI-

TUTE, Design, Equipment, Work Practice or Operational Stand-

ards: The 1977 Amendments and Adamo Wrecking Co., in AIR

AND WATER POLLUTION CONTROL LAW: 1980 at 183

(Wetstone, ed. 1980).

361.65(a) Relief valve discharge. Except for an emergency re-

lief discharge, there is to be no discharge to the atmosphere from

any relief valve on any equipment in vinyl chloride service. Aa

emergency relief discharge means a discharge which could not have

been avoided by taking measures to prevent the discharge. Within

10 days of any relief valve discharge, the owner or operator of the

source from which the relief valve discharge occurs shall submit

to the Administrator a report in writing containing information

on the source, nature and cause of the discharge, the date and

time of the discharge, the approximate tota] vinyl chloride loss

3la

Ethyl responds that the regulations, while phrased in

terms of no discharge, indirectly require the use of cer-

tain work practices The regulations actually allow non-

quantifiable discharges of vinyl chloride, provided certain

work practices and operational techniques are observed.

An emission standard is to be distinguished from a work

practice standard. An emission ‘‘standard is a quantitative

‘level’ to be attained by use of ‘techniques,’ ‘controls,’ and

‘technology’.’? Adamo Wrecking Ca. v. United States, 434

U.S. at 286, 98 S.Ct. at 573. When ‘‘it is not feasible to

prescribe or enforce an emission standard,’’ the Admin-

istrator is now authorized to enact a ‘‘design, equipment,

work practice, or operational standard.’’ 42 U.S.C. § 7412

(e)(1). The regulation at issue in Adamo had been pro-

posed originally as a limit on emissions of zero.‘

during the discharge, the method used for determining the vinyl

chloride loss, the action that was taken to prevent the discharge,

and measures adopted to prevent future discharges.

61.64(a)(3) Manual vent valve discharge: Except for an emer-

gency manual vent valve discharge, there is to be no discharge to

the atmosphere from any manual vent valve on a polyvinyl chloride

reactor in vinyl chloride service. An emergency manual vent valve

discharge means a discharge to the «mosphere which could not

have been avoided by taking measures to prevent the discharge.

Within 10 days of any discharge to the atmosphere from any man-

ual vent valve, the owner or operator of the source from which

the discharge occurs shall submit to the Administr“tor a report

in writing containing the information on the source, nature and

cause of the discharge, the date and time of the discharge, the

approximate total vinyl chloride loss during the discharge, the

method used for determining the vinyl chloride loss, the action

that was taken to prevent the discharge, and measures adopted to

prevent future discharges. (Emphasis added)

*“*Zero’’ emissions are possible under the Act. See S.Rep. No.

1196, 91st Cong., 2d Sess. at 20 (1970) and Senate Comm. on Pub-

lic works, ‘‘Summary of the Provisions of Conference Agreement

32a

The Administrator concluded, however, after examining

the situation, that it would often be impossible to preclude

all visible emissions of asbestos during the course of demo-

lition. He chose instead to regulate work practices during

demolitions. Adamo Wrecking Co. v. United States, supra,

434 U.S. at 287, 98 S.Ct. at 574. Ethyl argues that the

defendant in Adamo had two choices: He could have zero

emissions or he could comply with the work practices re-

quired by the regulations. Ethyl contends it has the same

two choices: It may have zero emissions or it may comply

with the instructions set out by EPA in the preamble to

the regulations, which describe the ‘‘measures’’ required

by EPA to prevent ‘‘avoidable’’ discharges:

A zero emission limit is being proposed for relief

discharges which can be prevented. In most cases, such

discharges from reactors can be prevented by measures

including, but not limited to, properly instrumenting

the reactors to detect upset conditions, injecting chemi-

cals to stop the polymerization reaction during upset

conditions, venting the reactor contents to a gasholder

during upset conditions and ultimately to a recovery

system, providing employees with improved training

on preventing and handling upset conditions, and util-

izing a stand-by source of power. For other pieces of

equipment, increasing pressure due to inert gases in

the system can be relieved by manual venting to a gas-

holder or recovery system. The conditions which lead

to discharges can also be prevented in most cases by

proper handling and transfer of vinyl chloride or ma-

terials containing vinyl chloride. Discharges which

cannot be avoided by taking such preventive measures,

such as those caused by natural disaster, will not be

on the Clean Air Amendments of 1970,’’ reprinted in A Legisla-

tive History of the Clean Air Amendments of 1970, Ser. No. 93-18,

93rd Cong., 2d Sess. at 133 (1974)

33a

in violation of the proposed standard if the owner or

operator notifies EPA within 10 days concerning the

nature and cause of the discharge. This notification pro-

vision is necessary to permit EPA to investigate the

surrounding conditions and determine whether the dis-

charge could have been prevented. 40 Fed.Reg. 59539.

Plainly the Administrator does not limit ‘‘emergency’’ to

earthquake, tornado, flood or other natural disaster, for

the regulations themselves speak in terms of discharges

which could not have been avoided by taking ‘‘measures.’’

The court can only conclude that the regulations equate

‘‘measures’’ to ‘‘work practices’’ and the Agency’s pos-

ture in United States v. Tenneco Chemicals, Inc., supra,

fortifies this conclusion. The court there noted that EPA

had instructed Tenneco that only emergency discharges of

vinyl chloride that could not have been prevented by taking

certain precautions were allowed. A letter from EPA had

advised Tenneco that the company must demonstrate that

discharges could not have been prevented by implementing

any of the following procedures:

(1) employee training programs, including instructions

on emergency procedures;

(2) proper inspection and maintenance programs (in-

cluding replacement of relief valve seals on a sufficiently

frequent basis in order to prevent their rupture) ;

(3) proper design and operation of process and control

equipment; and

(4) installation and operation of all control equipment

needed to comply with the vinyl chloride standard.

Bach of the ‘‘measures’’ to which EPA made reference

relates to ‘‘desiga, equipment, work practice, or operational

standard, or combination thereof,’’ the definition of work

practice. 42 U.S.C. § 7412(c).

34a

Ethyl argues, therefore, that the court’s determination

of whether a source has violated the emergency discharge

regulations will be based not on the quantity of what is

emitted but on whether the source has implemented the

measures required by the EPA.

Exactly what constitutes an ‘‘emergency’’ or an ‘‘avoid-

able discharge’’ is unclear. The government argues that

that very uncertainty is what renders this regulation an

emissions limitation. The government continues that Ethyl

is limited to zero emissions by whatever method it chooses;

it is allowed, however, to discharge in an emergency—an

argument which takes this court in a circle, right back to

the definition of ‘‘emergency.’’ What the regulation ac-

tually says is that unavoidable discharges are those which

could not be avoided by the application of work practices.

A commentator discussing the enactment of the Clean

Air Act emphasized the need to construe the Act as a

whole. The ‘‘attainment of ambient air quality,’’ he quoted

from Senate Reports, ‘‘is possible only through the en-

forcement of precise and objective emission controls.’’

Jorling, The Federal Law Pollution Control, in FEDERAL

ENVIRONMENT LAW 1101 (E. Dolgin and T. Guilbert,

eds. 1974). An emission standard, according to the Senate

Report and the commentator’s opinion, had to be one cap-

able of being enforced without ‘‘reanalysis of technological

or other considerations; ... an objective evidentiary stand-

ard would have to be met.’’ 7d. at 1102. Once standards

are set their violation ‘‘should be a relatively clear evi-

dentiary matter.’’ Id. at 1107.

The need for prompt enforcement of regulations which

are violated, the court’s lack of technological and scientific

xpertise, the time and study which should preface the

promulgation of a regulation—all support the wisdom be-

hind the Congressional intent that emission standards,

when finally set, should establish a numerical limit requir-

ing little of the court but its power to enforce compliance

35a

after an obvious violation. The 1977 amendment setting

out the procedure for promulgating work practice opera-

tions likewise has at its base the necessity for clear, objec-

tive regulations setting out precise requirements that must

be met in certain situations. 42 U.S.C. § 7412(e).

These emergency discharge regulations do not meet those

goals of clarity and ease of enforcement. The court is

aware, of course, thai it may not look into the sufficiency

of a regulation promulgated by the Administrator. If these

regulations are emissions standards, they must be enforced

no matter how poorly drafted.

Sections 69.65(a) and 61.64(a)(3), however, require the

use of ‘‘measures’’ to avoid emitting vinyl chloride. It is

true that these measures are not set out with specificity

as is required under the 1977 amendments, but they never-

theless do require compliance with work practices set out,

however vaguely, by the EPA. The conclusion is inescap-

able that these regulations, despite being designated as

emission standards by the Administrator, are work prac-

tice standards within the meaning of the Act. Compliance

with these elusive work practices renders any discharge

‘‘ynavoidable’’ and thus non-violative of the regulations.

Since they are work practice regulations promulgated prior

to the 1977 amendments, they are unenforceable by this

court.

Accordingly, defendant’s motion to dismiss for failure

to state a claim upon which relief can be granted is hereby

GRANTED.

36a

APPENDIX B

CLEAN AIR ACT

42 U.S.C. § 7412. NATIONAL EMISSION STANDARDS FOR

HAZARDOUS AIR POLLUTANTS

(a) Definitions

For purposes of this section—

(1) The term ‘‘hazardous air pollutant’? means an

air pollutant to which no ambient air quality standard

is applicable and which in the judgment of the Admin-

istrator causes, or contributes to, air pollution which

may reasonably be anticipated to result in an increase

in mortality or an increase in serious irreversible, or

incapacitating reversible, illness.

(2) The term ‘‘new source’? means a stationary

source the construction or modification of which is

commenced after the Administrator proposes regula-

tions under this section establishing an emission stand-

ard which will be applicable to such source.

(3) The terms ‘‘stationary source’’, ‘‘modification’’,

‘‘owner or operator’’ and ‘‘‘existing source’’ shall

have the same meaning as such terms have under sec-

tion 7411(a) of this title.

(b) List of hazardous air pollutants; emission standards;

pollution control techniques

(1)(A) The Administrator shall, within 90 days after

December 31, 1970, publish (and shall from time to time

thereafter revise) a list which includes each hazardous air

pollutant for which he intends to establish an emission

standard under this section.

(B) Within 180 days after the inclusion of any air pol-

lutant in such list, the Administrator shall publish pro-

posed regulations establishing emission standards for such

37a

pollutant together with a notice of a public hearing within

thirty days. Not later than 180 days after such publication,

the Administrator shall prescribe an emission standard for

such pollutant, unless he finds, on the basis of information

presented at such hearings, that such pollutant clearly is

not a hazardous air pollutant. The Administrator shall

establish any such standard at the level which in his judg-

ment provides an ample margin of safety to protect the

public health from such hazardous air pollutant.

section shall become effective upon promulgation.

(2) The Administrator shall, from time to time, issue in-

formation on pollution control techniques for air pollutants

subject to the provisions of this section.

(1) After the effective date of any emission standard

under this section—

(A) no person may construct any new source or

modify any existing source which, in the Administra-

tor’s judgment, will emit an air pollutant to which such

standard applies unless the Administrator finds that

such source if properly operated will not cause emis-

sions in violation of such standard, and

(B) no air pollutant to which such standard applies

may be emitted from any stationary source in violafion

of such standard, except that in the case of an existing

source—

(i) such standard shall not apply until 90 days

after its effective date, and

(ii) the Administrator may grant a waiver per-

mitting such source a period of up to two years

after the effective date of a standard to comply

38a

with the standard, if he finds that such period is

necessary for the installation of controls and that

steps will be taken during the period of the waiver

to assure that the health of persons will be pro-

tected from imminent endangerment.

(2) The President may exempt any stationary source

from compliance with paragraph (1) for a period of not

more than two years if he finds that the technology to

implement such standards is not available and the opera-

tion of such source is required for reasons of national

security. An exemption under this paragraph may be ex-

tended for one or more additional periods, each period not

to exceed two years. The President shall make a report to

Congress with respect to each exemption (or extension

thereof) made under this paragraph.

(d) State implementation and enforcement

(1) Each State may develop and submit to the Admin-

istrator a procedure for implementing and enforcing emis-

sion standards for hazardous air pollutants for stationary

sources located in such State. If the Administrator finds

the State procedure is adequate, he shall delegate to such

State any authority he has under this chapter to implement

and enforce such standards.

(2) Nothing in this subsection shall prohibit the Admin-

istrator from enforcing any applicable emission standard

under this section.

(e) Design, equipment, work practice, and

operational standards

(1) For purposes of this section, if in the judgment of

the Administrator, it is not feasibie to prescribe or enforce

an emission standard for control of a hazardous air pol-

ec:

"eS

lutant or pollutants, he may instead promulgate a design,

equipment, work practice, or operational standard, or com-

bination thereof, which in his judgment is adequate to pro-

tect the public health from such pollutant or pollutants

with an ample margin of safety. In the event the Admin-

istrator promulgates a design or equipment standard under

this subsection, he shall include as part of such standard

such requirements as will assure the proper operation and

maintenance of any such element of design or equipment.

(2) For the purpose of this subsection, the phrase “‘not

feasible to prescribe or enforce an emission standard’’

means any situation in which the Administrator determines

that (A) a hazardous pollutant or pollutants cannot be

emitted through a conveyance designed and constructed

to emit or capture such pollutant, or that any requirement

for, or use of, such a conveyance would be inconsistent with

any Federal, State, or local law, or (B) the application of

measurement methodology to a particular class of sources

is not practicable due to technological or economic limita-

tions.

(3) If after notice and opportunity for public hearing,

any person establishes to the satisfaction of the Admin-

istrator that an alternative means of emission limitation

will achieve a reduction in emissions of any air pollutant

at least equvalent to the reduction in emissions of such air

pollutant achieved under the requirements of paragraph

(1), the Administrator shall permit the use of such alterna-

tive by the source for purposes of compliance with this

section with respect to such pollutant.

(4) Any standard promulgated under paragraph (1)

shall be promulgated in terms of an emission standard

whenever it becomes feasible to promulgate and enforce

such standard in such terms.

(5) Any design, equipment, work practice, or operational

standard, or any combination thereof, described in this

40a

subsection shall be treated as an emission standard for

purposes of the provisions of this chapter (other than the

provisions of this subsection).

(July 14, 1955, c. 360, Title I, § 112, as added Dee. 31, 1970,

Pub.L. 91-604, § 4(a), 84 Stat. 1685, and amended Aug. 7,

1977, Pub.L. 95-95, Title I, %§ 109(d)(2), 110, Title IV,

§ 401(c), 91 Stat. 701, 703, 791; Nov. 9, 1978, Pub.L. 95-623,

§ 13(b), 92 Stat. 3458.)

4la

CLEAN AIR ACT

42 U.S.C. § 7413

(b) Violations by owners or operators of major

stationary sources

The Administrator shall, in the case of any person which

is the owner or operator of a major stationary source, and

may, in the case of any other person, commence a civil

action for a permanent or temporary injunction, or to

assess and recover a civil penalty of not more than $25,000

per day of violation, or both, whenever such person—

(1) violates or fails or refuses to comply with any

order issued under subsection (a) of this section; or

(2) violates any requirement of an applicable imple-

mentation plan (A) during any period of Federally

assumed enforcement, or (B) more than 30 days after

having been notified by the Administrator under sub-

section (a)(1) of this section of a finding that such

person is violating such requirement; or

(3) violates section 7411(e), section 7412(c), section

1857c-10(g) of this title (as in effect before August 7,

1977), subsection (d) (5) of this section (relating to coal

conversion), section 7624 of this title (relating to cost

of certain vapor recovery), section 7419 of this title

(relating to smelter orders), or any regulation under

part B of this subchapter (relating to ozone) ; or

(4) fails or refuses to comply with any requirement

of section 7414 of this title or subsection (d) of this

section; or

(5) attempts to construct or modify a major station-

ary source in any area with respect to which a finding

under subsection (a)(5) of this section has been made.

The Administrator may commence a civil action for re-

covery of any noncompliance penalty under section 7420

42a

of this title or for recovery of any nonpayment penalty

for which any person is liable under section 7420 of this

title or for both. Any action under this subsection may be

brought in the district court of the United States for the

district in which the violation occurred or in which the

defendant resides or has his principal place of business,

and such court shall have jurisdiction to restrain such vio-

lation, to require compliance, to assess such civil penalty

and to collect any noncompliance penalty (and nonpayment

penalty) owed under section 7420 of this title. In determin-

ing the amount of any civil penalty to be assessed under

this subsection, the courts shall take into consideration (in

addition to other factors) the size of the business, the eco-

nomic impact of the penalty on the business, and the seri-

ousness of the violation. Notice of the commencement of

such action shall be given to the appropriate State air

pollution control agency. In the case of any action brought

by the Administrator under this subsection, the court may

award costs of litigation (including reasonable attorney

and expert witness fees) to the party or parties against

whom such action was brought in any case where the court

finds that such action was unreasonable.

(1) Any person who knowingly—

(A) violates any requirement of an applicable im-

plementation plan (i) during any period of Federally

assumed enforcement, or (ii) more than 30 days after

having been notified by the Administrator under sub-

section (a)(1) of this section that such person is vio-

lating such requirement, or

(B) violates or fails or refuses to comply with any

order under section 7419 of this title or under subsec-

tion (a) or (d) of this section, or

43a

title, or

(D) violates any requirement of section 1857c-10(g)

ef this title (as in effect before August 7, 1977), sub-

section (b)(7) or (d)(5) of section 7420 of this title

(relating to noncompliance penalties), or any require-

ment of part B of this subchapter (relating to ozone)*

shall be punished by a fine of not more than $25,000 per

day of violation, or by imprisonment for not more than

cne year, or by both. If the conviction is for a violation

committed after the first conviction of such person under

this paragraph, punishment shall be by a fine of not more

than $50,000 per day of violation, or by imprisonment for

not more than two years, or by both.

(2) Any person who knowingly makes any false state-

ment, representation, or certification in any application,

record, report, plan, or other document filed or required

to be maintained under this chapter or who falsifies, tam-

pers with, or knowingly renders inaccurate any monitoring

device or method required to be maintained under this chap-

ter, shall upon conviction, be punished by a fine of not more

than $10,000, or by imprisonment for not more than six

months, or by both.

(3) For the purposes of this subsection, the term ‘‘per-

son’’ includes, in addition to the entities referred to in

section 7602(e) of this title, any responsible corporate

officer.

44a

CLEAN AIR ACT

42 U.S.C. § 7607

ADMINISTRATIVE PROCEEDINGS AND JUDICIAL REVIEW

- * e

(b) Judicial review

(1) A petition for review of action of the Administrator

in promulgating any national primary or secondary am-

bient air quality standard, any emission standard or re-

quirement under section 7412 of this title, any standard of

performance or requirement under section 7411 of this title,

any standard under section 7521 of this title (other than a

standard required te be prescribed under section 7521(b)

(1) of this title), any determination under section 7521

(b)(5) of this title, any control or prohibition under sec-

tion 7545 of this title, any standard under section 7571

of this title, any rule issued under section 7413, 7419, or

under section 7420 of this title, or any other nationally

applicable regulations promulgated, or final action taken,

by the Administrator under this chapter may be filed only

in the United, States Court of Appeals for the District of

Columbia. A petition for review of the Administrator’s ac-

tion in approving or promulgating any imp:vmentation plan

under section 7410 of this title or section 7411(d) of this

title, any order under section 7411(j) of this title, under

section 7412(c) of this title, under section 7413(d) of this

title, under section 7419 of this title, or under section 7420

of this title, or his action under section 1857c-10(¢) (2) (A),

(B), or (C) of this title (as in effect before August 3

1977) or under regulations thereunder, or any other final

action of the Administrator under this chapter (including

any denial or disapproval by the Administrator under sub-

chapter I of this chapter) which is locally or regionally

applicable may be filed only in the Tinited States Court of

Appeals for the appropriate circuit. - Notwithstanding the

preceding sentence a petition for review of any action re-

ferred to in such sentence may be filed only in the United

45a

States Court of Appeals for the District of Columbia if

such action is based on a determinaton of nationwide scope

or effect and if in taking such action the Administrator

finds and publishes that such action is based on such a

determination. Any petition for review under this subsec-

tion shall be filed within sixty days from the date notice

of such promulgation, approval, or action appears in the

Federal Register, except that if such petition is based solely

on grounds arising after such sixtieth day, then any peti-

tion for review under this subsection shall be filed within

sixty days after such grounds arise.

(2) Action of the Administrator with respect to which

review could have been obtained under paragraph (1) shall

not be subject to judicial review in civil or criminal pro-

ceedings for enforcement.

46a

APPENDIX C

CLEAN AIR ACT REGULATIONS

40 C.F.R. § 61.65 Emission standard for ethylene dichloride,

vinyl chloride and polyvinyl chloride plants.

An owner or operator of an ethylene dichloride, vinyl

chloride, and/or polyvinyl chloride plant shall comply with

the requirements of this section.

(a) Relief valve discharge. Except for an emergency

relief discharge, there is to be no discharge to the atmos-

phere from any relief valve on any equipment in vinyl

chloride service. An emergency relief discharge means a

discharge which could not have been avoided by taking

measures to prevent the discharge. Within 10 days of any

relief valve discharge, the owner or operator of the source

from which the relief valve discharge occurs shall submit

to the Administrator a report in writing containing in-

formation on the source, nature and cause of the discharge,

the date and time of the discharge, the approximate total

vinyl chloride loss during the discharge, the method used

for determining the vinyl chloride loss, the action that was

taken to prevent the discharge, and measures adopted to

prevent future discharges.

47a

APPENDIX D

MEMORANDUM

SUBJECT: Vinyl Chloride Relief Valve Discharge From

PVC Reactors-Borden Chemical

FROM: Director

Division of Stationary Source Enforcement

TO: Lawrence H. Goldman, Chief, Enforcement

Branch Region I

This is in response to your memo of March 29, 1979,

requesting guidance on what constitutes a ‘‘preventable’’

relief valve discharge under 40 CFR 61.65(a) and on what

steps a source can be expected to take in order to pre-

vent the occurrence or recurrence of relief valve dis-

charges.

When a source reports a relief valve discharge we

should presume that the discharge was not due to an

emergency, but was preventable and is therefore a vio-

lation of Section 61.65(a). The source will then have the

opportunity to demonstrate otherwise. In order for a dis-

charge to be considered an emergency, the source would

have to demonstrate that it could not reasonably have

been expected to anticipate the discharge and then to

prevent or contain it. As a minimum, the source would

have to demonstrate that the discharge could not have

been prevented by implementing any of the

1) employez training programs including instruction

on emergency procedures,

2) equipment inspection and maintenance programs,

3) proper design and operation of process and con-

trol equipment, and

4) installation and operation of all control equipment

needed to comply with the vinyl chloride standard.

48a

One factor which should be taken into consideration in

determining whether a discharge could have been antici-

pated and therefore prevented, is the plant’s prior history

with respect to discharges. If the source has previously

experienced one or more discharges, some or all of which

were caused by the same factor, the source is expected to

have taken corrective measures designed to prevent or

contain future discharges.

In summary, a relief valve discharge is a violation of

Section 61.65(a) if it could have been anticipated and

preventive measures could have been taken or if the dis-

charge could have been prevented by properly training

employees or by properly operating, maintaining and in-

specting equipment.

In particular, your memo requested guidance on what

constitutes a preventable operator error. As is the case

with other discharges, we should presume each discharge

to have been preventable and then provide the source.

with the opportunity to demonstrate otherwise. As a

minimum, the source would have to demonstrate that op-

erators were well-trained initially and had received re-

fresher training courses, as necessary, to cover both nor-

mal and upset conditions. Refresher courses should have

been provided particularly after the occurrence of an

initial relief discharge caused by operator error. The

source should be able to provide documentation as to the

dates training was offered and the operations covered.

The final issue to be addressed in this memo concerns

the types of actions a source should be expected to take,

after experiencing a relix’ valve discharge, in order to

prevent future discharges. The preamble to the proposed

vinyl chloride standard lists, on page 59539, several meas-

ures a source can reasonably be expected to take to pre-

vent relief valve discharges. Measures which can be taken

to prevent discharges from PVC reactors include, but are

not limited to, the following:

49a

1) properly instrumenting the reactors to detect upset

conditions,

2) injecting chemicals to stop the polymerization re-

action during upset conditions,

3) Venting the reactor contents to a gasholder during

upset conditions and ultimately to a recovery system,

4) providing employees with improved training on pre-

venting and handling upset conditions, and

5) maintaining a backup source of power. See 40 FR

59539, December 24, 1975.

It is apparent from this discussion that in developing the

vinyl chloride regulations we envisioned the use of gas-

holders to prevent or contain relief valve discharges.

Therefore, Borden Chemical and any other PVC manu-

facturer can reasonably be expected to install gasholders

to prevent discharges if other preventive measures, im-

plemented in a timely manner, fail. In fact some PVC

manufacturers have already installed gasholders for this

purpose.

Should you have any further questions on this issue,

please contact Libby Scopino at 735-2564.

Edward E. Reich

ec: Susan Wyatt, ESED

Marsha Spink, Region I

Marcus Kantz, Region IT

Peter Schaul, Region [II

Leon Polson, Region IV

Bruce Varner, Region V

Martin Brittain, Region VI

Paula Bisson, Region IX

Enforcement Division Directors, Region I-IV & IX

DSSE :EN-341 :LScopino :neb :tr12 :4/23/79

50a

[seat]

Washington, D.C. 20x50

Office of

Air, Noise, and Radiation

[Mar 14, 1980]

SUBJECT: Vinyl Chloride Standard-Safety Relief Valve

Discharges

FROM: David B. Hawkins, Assistant Administrator

for Air, Noise, and Radiation

TO: Rebecca Hanmer, Regional Administrator

Region IV

This is in regard to John White’s request in the De-

cember Senior Management Report for better guidance on

control of vinyl chloride emissions from safety relief valve

discharges. I understand that the regional offices in gen-

eral have had difficulties in enforcing section 61.65(a) of

the vinyl chloride standard which deals with relief valve

discharges. I also understand that the number of relief

valve discharges reported during the enforcement of the

standard has been greater than may have been expected.

This concerns me because of the large amount of emis-

sions which can occur during one of these discharges.

The vinyl chloride standard is scheduled for review in

1981, five years from the original promulgation date. We

are already beginning to develop 4 work plan for review

of that standard. During the review of the standard, my

staff plans to focus on the part of the regulation dealing

with relief valve discharges. An effort will be made to

identify any new developments in technology for control

of these discharges. Also, my staff will contact the offices

and obtain data on the frequency and causes of relief

valve discharges which have occurred and evaluate alter-

EE Re a A ee ee

5la

native ways of writing this part of the standard to im-

prove its clarity and effectiveness.

The following paragraphs provide information on the

development of the regulation for relief valve discharges

and guidance on the interpretation of it.

Section 61.65(a) of the vinyl chloride standard states

that ‘‘Except for an emergency relief discharge, there

is to be no discharge to the atmosphere from any relief

valve on any equipment in vinyl chloride service.’’ An

emergency relief discharge is defined as ‘‘a discharge

which could not have been avoided by taking measures

to prevent the discharge.’’

Although the regulation covers any relief valve on any

equipment that contains at least 10 percent vinyl chloride,

and is located in a vinyl chloride or polyvinyl chloride

plant, the primary intent of the regulation was to sub-

stantially reduce the number of relief valve discharges

from polyvinyl chloride reactors. At the time the regu-

lation was being developed, relief valve discharges from

polyvinyl chloride reactors were a common occurrence and

we were aware of specific means that could be implemented

to prevent these discharges. Relief valve discharges from

other equipment occurred much less frequently and we did

not include in our background documents specific infor-

mation on how they can be prevented. They were included

in the regulation, however, to ensure that emissions from

these relief valves did not occur unnecessarily. Our inten-

tion was that primary attention be focused on the polyvinyl

chloride reactor discharges which are the largest source of

emissions and for which we had described specific pre-

ventive measures.

The information we obtained during the development of

the standard indicated that the frequency of relief valve

discharges from polyvinyl chloride reactors varies consid-

erably from plant to plant. Some plants had less than one

52a

discharge per year; others had twenty or more. On the aver-

age, 5000 pounds of vinyl chloride was emitted from one

of the discharges within a five fo ten minute period.

Relief valve discharges from polyvinyl chloride reactors

cecur in order to prevent catastrophic rupture when

pressure within the reactor builds up beyond the capa-

bilities of the reactor to contain it. The production of poly-

vinyl chloride from vinyl chloride in reactors is an exo-

thermic reaction. Reactors are equipped with agitators and

cooling jackets to remove the heat due to the exothermic

reaction. Pressure buildups in reactors can occur if the

cooling equipment does not operate properly; this can hap-

pen if there is a power outage for example. It can also

occur if the operator adds too much vinyl chloride or some

other ingredient to the reactor during formulation of a

batch.

In order to prevent discharges, several steps can be

taken. For example, reactors can be equipped with tem-

perature or pressure sensing devices. When high tem-

perature or pressure is detected, chemicals can be manu-

ally or automatically added to the reactor to stop the

reaction. Provisions can be made to remove enough of

the contents of a reactor batch to another vessel so that

the pressure is brought back down to a satisfactory level

before it is necessary for the relief valve to discharge.

Back-up power sources can also be provided to keep agi-

tators operating during main power outages. Some of the

newer plants contain computerized systems which auto-

matically fill reactors with the proper quantity of each

ingredient and which contain provisions for altering op-

erations when overpressure is detected. Newer plants with

computerized systems tend to have fewer discharges. These

are several examples of preventive measures which had

been demonstrated in existing plants at the time of develop-

ment of the standard.

53a

Not all relief valve discharges can be prevented. The

intent of the regulation was that if a plant took steps

such as those named above and still had a relief valve

discharge, that relief valve discharge would be consid-

ered an emergency condition and would not be a violation.

We expected such situations to be rare.

We did not specifically require that each plant take

all of the preventive measures described above for a

couple of reasons. First, some plants were having very

few discharges (less than one per year) already without

taking all of the above named steps. It did not appear

prudent to require plants to unnecessarily install expen-

sive equipment when they were preventing the discharges

without it. There were wide variations among plants.

Some contained numerous older, smaller reactors, while

others contained large, more modern reactors. Relief valve

discharges are much more easily controlled from the

newer and larger reactors than from the older and smaller

reactors. In addition, we did not want to preclude the

development of improved technology which may be even

more successful in preventing discharges than the tech-

nology available at the time we developed the regulation.

The intention of the regulation was that each plant in-

stall sufficient preventive equipment to reduce the number

of polyvinyl chloride reactor discharges to a very small

number. For plants who report essentially no discharges,

no additional equipment would be required. However, for

plants who do report discharges, more and more preven-

tive measures would be required through enforcement ac-

tions until the occurrence of discharges from any one

plant is rare.

I hope this information is useful to you. If you have

additional questions, comments, or suggestions, please

contact me.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.