Opposition Brief — Firestone Tire & Rubber Co. v. United States

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( 7 } ‘te Supreme Court, U.S.

a G/ 0 i Sone | ie

Nos. 85-334 and 85-376 DEC 9 1985

JOSEPH F-SPANIOL, JR.

Iu the Supreme Court of the Anited States poner

OCTOBER TERM, 1985

FIRESTONE TIRE & RUBBER COMPANY AND

OCCIDENTAL CHEMICAL CORPORATION, PETITIONERS

V.

UNITED STATES OF AMERICA

ETHYL CORPORATION, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

F. HENRY Hasicut I!

Assistant Attorney General

RoBERT L. KLARQUIST

ANNE S. ALMY

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

BEST AVAILABLE COPY

————— ee t—‘(‘i‘CO;C;C*S

QUESTIONS PRESENTED

1. Whether a defendant in a civil enforcement action can

challenge the validity of an EPA regulation, even though

Section 307(b)(2) of the Clean Air Act, 42 U.S.C. 7607(b)(2),

precludes review of the validity of EPA regulations in

enforcement proceedings.

2. If we assume that facial review of the validity of a

regulation is permissible in an enforcement proceeding,

whether the court of appeals correctly concluded that a

regulation calling for no discharge of vinyl chloride from

relief valves except in an unpreventable emergency is an

emission standard within the meaning of Section 112(b) of

the Clear Air Act, 42 U.S.C. 7412(b).

(I)

TABLE OF CONTENTS

Page

Opinions below ............ccseccscccscccscesnce l

Oe Coe eee che ed tee aah k eve 4e 2

COTTE CECT eT A Lakes vadateaeas 2

NE OES eT eee Te eRe ETT Le Te Eee 7

EERE ee ee 14

TABLE OF AUTHORITIES

Cases:

Adamo Wrecking Co. v. United States,

4 aS: . re 2, 2, 6, 7, 8, 40, Ti, 12,13

Chemical Manufacturers Ass'n v. NRDC,

gm SS ye |) 8

Chevron U.S.A. Inc. v. NRDC, No. 82-1005

Ee 8

EPA Civil Penalty Policy:

ee PL CUEUPED ER cc ccecsnccceesssss 12

Se ERD vise ccceesavsacess 12

FCC v. American Broadcasting Co.,

ee wean s bins bess 6 00tss ss 12

Hooker Chemical Co. v. United States,

cc ane an cada nkasece see kues 13

UE RS ss Wy Se” Yt.” SR

SEC v. Ralston Purina Co.,

i RR en ee 8

Society of the Plastics Industry, Inc. v.

OSHA, 509 F.2d 1301, cert. denied,

eae rea eee ab kh an 040 bo 4ah's 3

IV

Page

Cases—Continued:

Tis 6: WE, AAt US. DD . oso nc ek ckcecacs. li

ee *W, Pe, SP EE, Wok a wa ceca suvensa 11

United States v. Bacto-Unidisk,

SN re a new iwbe cake 8

United States v. Borden, Inc.,

eg OE A a ee er 8

United States v. Conoco, Inc.,

No. 83-1916-E (W.D. Okla. Jan. 23,

PE SRO PEI eS ae SM eee Dee ee 8

United States v. B.F. Goodrich Co.,

ee. A © kui cue ik beas chanchsekekunees 8

United States v. Ward, 448 U.S. 242 .......... 12

United States v. West Penn Power Co.,

ee SG BE a keane ee eee nek eae eean een 9

Weinberger v. Romero-Barcelo,

I Ns ee ain 9, 11

Constitution, statutes and regulations:

U.S. Const. Amend. V (Due Process Clause) ... 10

Clean Air Amendments of 1970, Pub. L.

No. 91-604, 84 Stat. 1676 et seq. ............. 2

ek ae Oe 2

42 U.S.C. 7412(b)(1)(A) (§ 112(b)(1fA)) .... 3

42 U.S.C. 7412(b)(1)(B) (¢ 112(b)(i)(B)) ... 2,3

42 U.S.C. 7412(c)(1)(A) (¢ LI2(c) (A) ..... 4

42 U.S.C. 741QAeX1) @ NAeXD) .......... 2

42 U.S.C. 7412(e)(2) (§ 112(e)(2)) .......... 2

42 U.S.C. 7413(b) (§ 113(b)) ........... 11, 13

42 U.S.C. 7413(c\(1) (§ 113(cMi)) we eee ee. 1

Page

Constitution, statutes and regulations—Continued:

GE US Fee ee Pe es sslec es vawewsdaans 13

42 U.S.C. 7607(b)(1) (§ 307(b)(1)) ....... 3, 15

42 U.S.C. 7607(b)(2)

fo. erred eee eee 3, 6, 12, 13

PG Ue Ge 60500 66c an cae ob buwaseeseaes 12

40 C.F.R. :

8 errr err errr rer. 4,5

GUE book wc cds cdeesaecagn 4,5,6

Miscellaneous:

40 Fed. Reg. (1975):

Se a eee ee eer es 4

eT POINTE. oo bd er ne pe kenesieenneaeee 3

DD, DOE OPONS 60s ksi seaensencaweeecaen 3

Ek aknas cs ep 5k sud saan caewanenieres 4

Te hsaa nih Os Usd bnwesa bayewenseeoen 4

© eee Perr rere rrr. ee 4

41 Fed. Reg. (1976):

i GED ncn ak cen ssi cc ewguas seed easarens 4

i ME i xnin.0 6 4.5-04.5.00 <a een eRe eee kes 4

II Office of Waste Management, U.S.

Environmental Protection Agency,

EPA-450/2-75-009b, Standard Support

and Environmental Impact Statement

tig, REPORT EET Ce eT Ere CCITT TET TELE 4

In the Supreme Court of the Hnited States

OCTOBER TERM, 1985

No. 85-334

FIRESTONE TIRE & RUBBER COMPANY AND

OCCIDENTAL CHEMICAL CORPORATION, PETITIONERS

Vv .

UNITED STATES OF AMERICA

No. 85-376

ETHYL CORPORATION, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-1 1a)! is

reported at 761 F.2d 1153. The decision of the district court

in United States v. Ethyl Corporation (Pet. App. 24a-35a)

is reported at 576 F. Supp. 80. The decision of the district

court in United States v. Occidental Chemical Corp. (Pet.

App. 12a-23a) is unreported.

'Pet. App. references are to the petitioners’ appendix in No. 85-334.

(1)

2

JURISDICTION

The judgment of the court of appeals was entered on June

3, 1985. The petition for a writ of certiorari in No. 85-334

was filed on August 28, 1985. The petition for a writ of

certiorari in No. 85-376 was filed on August 30, 1985. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

1. Inthe 1970 amendments to the Clean Air Act (Pub. L.

No. 91-604, 84 Stat. 1676 et seg.) Congress authorized the

Administrator of the Environmental Protection Agency

(EPA) to promulgate national emission standards for

hazardous air pollutants. § 112(b)(1)(B), 42 U.S.C.

7412(b)(1)(B). Under the statute, the Administrator is to

publish a list of hazardous air pollutants and to prescribe an

emission standard for such pollutants. 42 U.S.C.

4712(b)(1)(B). An “emission standard” is a “quantitative

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

and technology.’ ” Adamo Wrecking Co. v. United States,

434 U.S. 275, 286 (1978). Emission standards differ from

“work practice standards,” which prescribe techniques,

controls, and technology to be used rather than establishing

a quantitative emission level that must be attained. The

Administrator is to “establish any such standard at the level

which in his judgment provides an ample margin of safety to

protect the public health.” 42 U.S.C. 7412(b)(1)(B).?

?In 1977 Congress amended Section 112 (42 U.S.C. 7412) to autho-

rize the promulgation of work practice standards if “it is not feasible” to

prescribe a numerical emission limitation because the hazardous pollu-

tant cannot be emitted through a conveyance or cannot be measured. $

112(e)(1) and (2), 42 U.S.C. 7412(e)(1) and (2). The Section authorizes

the Administrator to promulgate a “design, equipment, work practice

or operational standard” if it is not feasible to prescribe or enforce a

numerical emission limitation. 42 U.S.C. 7412(e)(1).

3

In 1970 Congress also provided for judicial review of the

Administrator’s action in promulgating emission standards

for hazardous air pollutants. Section 307(b)(1), 42 U.S.C.

7607(b)(1), requires a petition for review “of action of the

Administrator in promulgating * * * any emission stand-

ard” under Section 112(b)(1)(B) to be filed “only in the

United States Court of Appeals for the District of Colum-

bia” within 30 days of the Administrator’s action.’ Any

action of the Administrator “with respect to which review

could have been obtained” under Section 307(b)(1) is not

subject to judicial review in “civil or criminal proceedings

for enforcement.” § 307(b)(2), 42 U.S.C. 7607(b)(2). Section

307(b)(2) is commonly known as the “preclusive review”

provision of the Clean Air Act.

2. Vinyl chloride was listed as a hazardous air pollutant

pursuant to Section 112(b)(1)(A) (42 U.S.C. 7412(b)(1)(A))

in December 1975. 40 Fed. Reg. 59477-59478 (1975). Evi-

dence had accumulated in the early 1970s showing that

vinyl chloride was associated with a rare form of liver

cancer, liver angiosarcoma. The preamble to EPA’s pro-

posed rulemaking summarized the health data on vinyl

chloride exposure. It stated that workers in vinyl chloride

plants were shown to experience 3,000 times the risk of

developing angiosarcoma as the general population and

that animal studies showed angiosarcoma at exposure lev-

els of 50 parts per million (ppm).‘ People living in the

immediate vicinity of vinyl chloride plants in 1974 expe-

rienced “occasional peak exposure of as high as 33 ppm.” 40

3The 1977 amendments to the Clean Air Act enlarged the time in

which rev’- may be sought to 60 days. 42 U.S.C. 7607(b)(1).

‘The Occu vational Safety and Health Administration promulgated

regulations governing worker exposure to vinyl chloride in 1974. See

Society of the Plastics Industry, Inc. v. OSHA, 509 F.2d 1301 (2d Cir.),

cert. denied, 421 U.S. 992 (1975).

4

Fed. Reg. 59523-59533 (1975). EPA therefore proposed

standards for vinyl chloride emissions, including emissions

from relief valves. See 40 Fed. Reg. 59536, 59545-59546

(1975). The proposed regulations provided for “no dis-

charge to the atmosphere from any relief valve” except for

an emergency. 40 Fed. Reg. 50545 (1975). The preamble to

the proposed regulations explained that a “zero emission

limit is being proposed for relief discharges which can be

prevented.” 40 Fed. Reg. 59539 (1975).

In response to the notice of proposed rulemaking, 24

vinyl chloride companies submitted comments, including

petitioners Ethyl Corporation, Firestone Plastics Co., and

_ the predecessor of Occidental Chemical Corporation. 41

Fed. Reg. 46560, 46561 (1976). Several industry comments

were directed to the proposed relief valve regulations.* The

final relief valve regulations were slightly modified versions

of the proposed regulations. They provide that there be no

discharges from automatic or manual relief valves “except

for an emergency” discharge. The regulations define an

emergency discharge as one that could not have been pre-

vented “by taking measures to avoid the discharges.” 40

C.F.R. 61.64(a)(3), 61.65(a). They also require companies

to notify the EPA of relief valve discharges within 10 days of

their occurrence. The final regulations were promulgated

on October 21, 1976, and became applicable to existing

sources on January 20, 1977.41 Fed. Reg. 46560 (1976). See

§ 112(c)(1)(A), 42 U.S.C. 7412(c)(1)(A). No action challeng-

ing the final relief valve regulations was filed in the District

of Columbia Circuit.

‘Petitioner Firestone argued that a negligence standard should be

employed in determining whether relief valve discharges attributable to

operator error were preventable. II Office of Waste Management, U.S.

Environmental Protection Agency, EPA-450/2-75-009b, Standard

Support and Environmental Impact Statement, at 2-47 (1976).

5

3. a. A civil enforcement action against the Ethyl Cor-

poration was commenced in February 1983. The complaint

sought civil penalties and an injunction to remedy repeated

relief valve di:charges of vinyl chloride from the company’s

facility at Baton Rouge, Louisiana. The complaint alleged

81 discharges from automatic relief valves, in violation of 40

C.F.R. 61.65(a), totalling 168,622.7 pounds of vinyl chlo-

ride between March 18, 1977, and April 30, 1982. It also

charged the company with 17 discharges from manuai relief

valves, in violation of 40 C.F.R. 61.64(a)(3), totalling

14,596 pounds of vinyl chloride between July 14, 1978, and

January 11, 1982. Pet. App. 25a. The complaint requested

civil penalties and an injunction to require Ethyl Corpora-

tion to develop and implement a remedial program to pre-

vent future vinyl chloride discharges.

In April 1983 Ethyl filed a motion to dismiss, claiming

that the relief valve regulations constituted work practice

standards which were unauthorized by the Clean Air Act

when the regulations were promulgated in 1976. Accord-

ingly, the company claimed that the regulations were unen-

forceable as a matter of law. The district court, relying on

Adamo Wrecking, ruled that it had jurisdiction, despite the

preclusive review provision, to determine whether the relief

valve regulations were emission standards within the mean-

ing of the Clean Air Act (Pet. App. 28a-29a). It then ruled

that the relief valve regulations are work practice standards

because the trial court, in an enforcement action, would

have to inquire into the measures the company employed to

avoid emergencies in order to determine whether there had

been a violation. Accordingly, the district court declared

the relief valve standards unenforceable and dismissed the

case. Pet. App. 32a-35a.

b. Acivil enforcement action against Occidental Chemi-

cai Corporation and Firestone Tire and Rubber Company

was commenced in July 1983 (Pet. App. 13a). Occidental

6

owns and operates a polyvinyl chloride plant in Addis, West

Baton Rouge Parish, Louisiana. It purchased this plant in

November 1980 from Firestone Tire and Rubber Company,

which owned and operated the plant prior to that date. The

complaint alleged that Firestone discharged a total of

approximately 5,011 pounds of vinyl chloride from relief

valyes, in violation of 40 C.F.R. 61.65(a), in 21 episodes

between March and October of 1980. It further alleged that

Occidental discharged a total of 2,120 pounds of vinyl

chloride on nine occasions between January 1981 and Feb-

ruary 1982. In addition, the complaint charged that Fire-

stone, on all 21 occasions, and Occidental, on two occa-

-——-sions, failed to report relief valve discharges in the 10-day

period specified in 40 C.F.R. 61.65(a).

Firestone and Occidental filed motions to dismiss the

complaint based upon the district court’s decision in the

Ethyl case. In response, the government filed a motion to

stay proceedings pending the outcome of its appeal in the

Ethyl case. The district court denied the stay motion, and

dismissed the action without issuing an opinion. Pet. App.

22a-23a.

4. The court of appeals consolidated the two cases and

reversed. The court ruled that Section 307(b){2) on its face

divested the district court of jurisdiction over petitioners’

challenge to the relief valve regulations (Pet. App. 5a). It

further ruled that this Court’s decision in Adamo Wrecking

is limited to criminal prosecutions, so that the Court’s hold-

ing that a district court in a criminal enforcement action

may determine whether or not the regulation that the

defendant allegedly violated is on its face an “emission

standard” does not extend to these civil enforcements

actions (Pet. App. 5a-9a).° The court of appeals also found

‘The court noted that the companies had not invoked considerations

of due process to escape the preclusive effect of Section 307(b)(2) and

that they probably lacked standing to do so since they all participated in

the rulemaking proceedings in 1976 (Pet. App. 8a-9a n.8).

7

that if Adamo Wrecking applied so that a limited inquiry

into the relief valve regulations was warranted, the regula-

tions were on their face emission standards (Pet. App.

9a-10a).

ARGUMENT

The decision of the court of appeals is correct and is not in

conflict with the decisions of this Court or any other court

of appeals. Accordingly, review by this Court is not

warranted.’

1. Petitioners’ major submission is that the court of

appeals erred in refusing to apply Adamo Wrecking Co. v.

United States, 434 U.S. 275 (1978), to these civil enforce-

ment actions. In Adamo Wrecking, this Court held that a

defendant in a criminal prosecution brought to enforce

asbestos reguiations promulgated under the Clean Air Act

could raise the issue of “whether the regulation which the

defendant is alleged to have violated is on its face an ‘emis-

sion standard’ ” (434 U.S. at 285). The Court stressed that

the reviewing court in such a case is to conduct a “narrow

inquiry” (ibid.).®

’Since the court of appeals reversed and remanded for trial, peti-

tioners’ contentions are not yet ripe for review. If petitioners prevail at

their trials, their contentions will be moot. If, on the other hand, they

are held liable for damages and those determinations are upheld on

appeal, they will then be able to present their contentions to this Court,

together with any other claims they may have, in a petition for a writ of

certiorari seeking review of a final judgment against them. For this

reason as well, review by this Court is unwarranted.

*The issue on the merits in this case differs substantially from that

decided in Adamo Wrecking. In Adamo Wrecking, the government

admitted that the contested regulation was a “work practice” standard.

See Brief for the United States at 5, 28-29. The question considered by

the Court, therefore, was whether a work practice standard constituted

an emission standard within the meaning of the statute. In the present

case, the government does not consider the vinyl chloride relief valve

regulations to be “work practice” standards. Accordingly, petitioners’

claims here required the courts to determine whether the relief valve

8

The short answer to petitioners’ argument is that the

court of appeals afforded the petitioners the inquiry man-

dated by Adamo Wrecking in criminal cases in reversing the

district court. The court of appeals held that, to the extent a

“limited inquiry is warranted” for jurisdictional purposes

(Pet. App. 9a & n.9), it “had no trouble labeling the regula-

tions as emission * * * standards” since they set “a ‘no

discharge’ cap on the amount of vinyl chloride” that can be

emitted (id. at 10a). The court’s resolution of this question—

that the regulations are emission standards rather than

work practice standards——is in conformity with the deci-

sions of all the other lower federal courts (excluding the

district court here) that have considered the matter. United

States v. Borden, Inc., 572 F. Supp. 684 (D. Mass. 1983);

United States v. Conoco, Inc., No. 83-1916-E (W.D. Okla.

Jan. 23, 1984); United States v. B.F. Goodrich Co., 609 F.

Supp. | (W.D. Ky. 1984). Thus, if a federal court must

review the facial validity of a regulation in a civil enforce-

ment action under the Clean Air Act, that review was

afforded petitioners by the Fifth Circuit, which held, in

conformity with the decisions of three district courts, that

the relief valve regulations are emission standards.°

regulations should be interpreted as “work practice” standards contrary

to the interpretation of the Administrator. In such circumstances, the

interpretation of the Administrator is normally entitled to deference.

See, e.g., Chemical Manufacturers Ass'n v. NRDC, No. 83-1013 (Feb.

17, 1985), slip op. 9-10; Chevron U.S.A. Inc. v. NRDC, No. 82-1005

(June 25, 1984), slip op. 5-6.

*Moreover, because this interpretation helps to effectuate the pur-

poses of the Act, it has properly been adopted by the courts. As this

Court explained in resolving a similar definitional question under the

Federal Food, Drug, and Cosmetic Act, “the ‘natural way’ to draw the

line ‘is in light of the statutory purpose.’ ” United States v. Bacto-

Unidisk, 394 U.S. 784, 799 (1969), quoting SEC v. Ralston Purina Co.,

346 U.S. 119, 124-125 (1953).

9

As Firestone’s submission demonstrates (Pet. 11-14),

petitioners seek far more than facial review of the vinyl

chloride relief valve regulations. Firestone submits en-

forcement memoranda as evidence that the regulations

should be interpreted as‘ work practice standards (id. at

11-12), and relies upon the injunctive relief sought in the

complaints to show that measures were necessary to coniply

with the regulations (id. at 13). Such evidence, of course, is

irrelevant to the “facial inquiry” petitioners purport to seek.

More significantly, use of such materials could convert any

Clean Air Act regulation into a work practice standard. All

emission standards require measures— installation of equip-

ment or changes in operating procedures—for their attain-

ment. An individualized study of the measures taken by a

polluter and the possible additional procedures and equip-

ment available to reduce emissions is relevant to the deci-

sion to take enforcement action and to the formulation of

the appropriate form of injunctive relief to request.!® If

consideration of such matters shows that the regulation

sought to be enforced is a “work practice standard,” then

many Clean Air Act regulations promulgated before 1977

may be subject to invalidation.

In short, the court of appeals afforded petitioners the

limited inquiry into the facial validity of the relief valve

regulations that they purport to seek. Moreover, since the

1977 amendments to the Clean Air Act, the Administrator

For example, in United States v. West Penn Power Co., 460 F.

Supp. 1305, 1307 (W.D. Pa. 1978), the United States brought action to

enforce a requirement that a power plant not “emit sulfur dioxide in

excess of .6 pounds per million BTU.” The relief requested by the

United States was an order directing that a flue gas desulferization

system be installed (id. at 1307-1308), and such an order was entered by

the district court (id. at 1319). Cf. Weinberger v. Romero- Barcelo, 456

U.S. 305, 318 (1982) (creation of compliance orders under the Clean

Waiter Act).

10

has been authorized to promulgate work practice stand-

ards See note 2, supra. Hence, the distinction between

emission standards and work practice standards is of

limited significance for the future. As a result, there is no

substantial reason for this Court to review the universal

conclusion that the vinyl chloride relief valve regulations

are valid on their face as emission standards.!!

2. In addition, it is not clear that even a facial inquiry is

appropriate in a civil enforcement action. This Court rested

its holding Adamo Wrecking on the “stringent s? nctions,”

including imprisonment, which may be imposed for crimi-

nal violations of the Clean Air Act (434 U.S. at 283). The

Court stressed that Congress had created a number of spe-

cial rules regarding criminal liability under the Act and that

it has “imposed civi/ liability for a wider range of violations

of the orders of the Administrator than those for which it

has imposed criminal liability” (id. at 282 (emphasis in

original)). Moreover, invoking the rule of lenity, a standard

of statutory construction used only in criminal cases, this

Court ruled ‘that, if there were doubts, they were to be

“resolved in favor of the defendant” (id. at 285 (citation

omitted)).

As the court of appeals concluded, “the Court rested its

holding in Adamo Wrecking on the nature of a criminal

prosecution” and its rationales are not “applicable in the

context of civil proceedings” (Pet. App. 6a-7a). In contrast

to the ruie of lenity, deference is to be afforded the interpre-

tations of the Administrator concerning EPA’s statutes and

“Ethyl attacks (Pet. 14-15) the court of appeals’ footnote (Pet. App.

8a-9a n.8) suggesting that the petitioners would probably lack standing

to raise a due process claim because they commented on the regulations

at the time of their promulgation. Ethyl’s contention that the court’s

footnote creates a constitutional problem under the equal protection

component of the Due Process Clause is without merit since petitioners

never raised a due process claim below.

il

regulations in civil actions. Train v. NRDC, 421 U.S. 60, 75

(1975); see Udall v. Tallman, 380 U.S. 1, 16 (1965). As the

Court noted in Adamo Wrecking, Congress imposed civil

liability for a wide variety of violations of the Act. And, of

course, imprisonment cannot be imposed in a civil

enforcement action.

Petitioners argue that criminal standards should be app-

lied to these civil enforcement actions because they are

indistinguishable from criminal actions. Petitioner Fire-

stone claims (Pet. 7) that there is no meaningful difference

between civil and criminal proceedings under the Clean Air

Act because the maximum daily penalty or fine specified in

Act, $25,000 a day, is the same under both civil and criminal

enforcement provisions. $ 113(b) and (c)(1), 42 U.S.C.

7413(b) and (c)(1). The civil enforcement provision, how-

ever, clearly empowers the Administrator to seek injunc-

tions as well as to recover civil penalties (¢ 113(b)), while the

criminal provisions state that a knowing violator may “be

punished by a fine * * * or by imprisonment for not more

than one year, or by both” for a first offense ($ 113(c)(1)).

Thus, there are significant differences.

Petitioner Ethyl (Pet. 7-8) contends that the civil actions

should be analogized to criminal proceedings because the

civil penalties sought are “penal” in nature. Petitioner

ignores that the complaints filed by the government

requested injunctive relief as well as civil penalties. Injunc-

tive relief, of course, is addressed to the federal court sitting

in equity and is entirely civil in nature. See Weinberger v.

Romero- Barcelo, 456 U.S. 305, 311-312 (1982). Moreover,

analysis of the civil penalty provision of Section 113(b)

compels the conclusion that it is not primarily punitive, see

12

United States v. Ward, 448 U.S. 242, 254 (1980), and has

been administered to effectuate compensatory objectives.!?

Petitioners also assert that, even if the present enforce-

ment actions are found to be entirely civil in character,

Adamo Wrecking and Section 307(b)(2) should be read to

afford civil defendants the right to challenge the facial

validity of the Administrator’s regulations because federal

statutes should be given the same construction in both civil

and criminal applications. Petitioners rely primarily upon

FCC v. American Broadcasting Co., 347 U.S. 284 (1954)

(85-334 Pet. 7-9; 85-376 Pet. 8), in making this argument. In

that case the Court held that the phrase “any lottery, gift

enterprise, or similar scheme” did not mean one thing in a

criminal prosecution under 18 U.S.C. 1304 and something

else in FCC regulations prohibiting violations of Section

1304 by broadcasters. 347 U.S. at 296 n.18. Nothing in the

Court’s opinion suggests that a facial inquiry into whether a

regulation is an emission standard is required in both civil

and criminal enforcement actions.’

'2The EPA Civil Penalty Policy calculates penalties within the statu-

tory maximum by evaluation, inter alia, of the environmental damage

involved, the economic benefit enjoyed by the violator through its

noncompliance, and extraordinary enforcement costs incurred. See

EPA Civil Penalty Policy, 8 Env’t Rep. (BNA) 2011, 1012 (1978); see

also 15 Env't Rep. (BNA) 885 (1984).

13Firestone notes (Pet. 8) that the Court stated that the construction

of Section 1304 urged by the FCC “would likewise apply in criminal

cases,” contrary to the “well-established principle that penal statutes are

to be construed strictly” (347 U.S. at 296). This case is obviously

different since we are not suggesting that a facial inquiry into whether a

particular regulation is an emission standard is not required in criminal

cases; Adamo Wrecking forecloses such an argument. It does not follow

from FCC v. American Broadcasting Co., supra, that a similar inquiry

must be available in civil cases. That decision at most suggests a need for

similarity of substantive statutory interpretation when the substantive

issue is properly raised.

13

Accordingly, the court of appeals was entirely correct in

holding that a facial inquiry into whether the vinyl chloride

regulations are emission standards is not required in these

civil enforcement cases. Having failed to raise the issue in

challenging the regulations following their promulgation,

petitioners are now precluded by Section 307(b)(2) from

litigating the issue in civil enforcement proceedings.

Moreover, this case is the first court of appeals decision

concerning whether Adamo Wrecking applies to a civil

enforcement proceeding pursuant to Section 1|13(b) of the

Clean Air Act." There will be an opportunity for this Court

to review this question should there be a decision by another

court of appeals in the future that conflicts with the court of

appeals’ decision in this case. Moreover, in the present case,

the court of appeals, as an alternative ground for its deci-

sion, afforded petitioners Adamo Wrecking-type review

and, as we have shown, its holding rejecting their claim on

the merits does not warrant this Court’s review. There is,

accordingly, no occasion here for review of the Adamo

Wrecking issue.

“Contrary to petitioners’ claims (85-334 Pet. 9; 85-376 Pet. 10),

Hooker Chemical Co. v. United States, 642 F.2d 48 (3d Cir. / 81), is

not in conflict with the court of appeals’ decision. Hooker Chemical Co.

was a Section 307(b)(1) challenge to an EPA order—not an enforce-

ment proceeding—and the court’s statements concerning Adamo

Wrecking were mere dicta. See also Luckie v. EPA, 752 F.2d 454,

456-457 (9th Cir. 1985) (Adamo Wrecking is “inapplicable” in citizens

suit under Section 304 (42 U.S.C. 7604) of the Act because “no criminal

charges” are involved).

4

‘ CONCLUSION

The petitions for writs of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

F. HENRY Hasicut II

Assistant Attorney General

ROBERT L. KLARQUIST

ANNE S. ALMY

Attorneys

DECEMBER 1985

DOJ-1985-12