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

ee Supreme Court, U.S.

rs. SoS

SEP 6 i985

fr JOSEPH F.. « NIOL, JR.

CLERK

IN THE

Supreme Court of the United

OcTOBER TERM, 1985

ETHYL CORPORATION,

Vv.

THE UNITED STATES OF AMERICA,

States

Petitioner,

Respondent.

PETITION FOR WRIT OF CERTIORARI

UNITED STATES

TO THE

COURT OF APPEALS FOR THE FIFTH CIRCUIT

F. WALTER CONRAD

BAKER & Botts

3000 One Shell Plaza

Houston, Texas 77002

(713) 229-1230

MARTIN L. Mc GREGOR

NORVELL & ASSOCIATES

6363 Woodway, Suite 275

Houston, Texas 77057

(713) 266-1914

Attorneys for Petitioner

Of Counsel:

Davip C. BACH

RICHARD M. LAVERS

ETHYL CORPORATION

451 Florida Boulevard

Baton Rouge, Louisiana 70801

(504) 388-7058

0 ih

i

QUESTIONS PRESENTED

1. Did the Court of Appeals hold correctly that § 307(b) (2)

of the Clean Air Act divests the District Court of Jurisdiction

to determine whether a complaint seeking civil penalties under

the Clean Air Act states a cause of action?

2. Did the Court of Appeals decide correctly that the

challenged regulation was a valid emission standard rather

than an invalid “work practice’’?

3. Does the Court of Appeals’ construction of § 307(b) (2)

violate the due process clause of the Fifth Amendment and

invade the judiciai independence of Article III Courts?

LIST OF ALL PARTIES

Ethyl Corporation has the following affiliates which are

wholly owned subsidiaries except where noted.

(1) American Mayflower Life Insurance Company of New

York

(2) Barelay Reinsurance Company (50% by First Colony

Life Insurance Company)

(3) Buek Coal, Ine.

(4) Capitol Products Corporation

(5) Eid Corporation

(6) Ethyl Asia Pacific Company

(7) Ethyl Canada Ine.

(8) Ethyl Cooper Limited

(9) Ethyl Export Corporation

(10) Ethyl Foreign Sales Corporation

(11) Ethyl Hellas Chemical Company S.A.

(12) Ethyl Insurance Company

(13) Ethyl Interamerica Corporation

(14) Ethyl Mineralole Oil Additive GmbH

(15) Ethyl Molded Products Company

(16) Ethyl Oil and Gas Corporation

(17) Ethyl Overseas Development Corporation

(18) Ethyl Petroleum Additives, Ine.

(19) Ethyl Petroleum Additives Ltd.

(20) Ethyl Petroleum Corporation

(21) Ethyl Properties, Ine.

(22)

(23)

(24)

(2°,

(26)

(27)

(28)

(29)

(30)

(31)

(32)

(33)

(34)

(35)

(36)

(37)

(38)

(39)

(40)

(41)

(42)

(43)

(44)

(45)

(40)

(47)

(48)

(49)

(50)

(51)

(52)

(53)

(54)

(55)

il

Ethyl S.A.

Ethy! VisQueen, Ine.

Fiberlux, Ine.

First Colony Bank and Trust Company

First Colony Credit Company

First Colony Development Company

First Colony Discount Company

First Colony Finance Company

First Colony Leasing Company

First Colony Life Insurance Company

First Colony Mortgage Company

First Colony Properties, Ine.

First Colony Savings & Loan Association

First Colony Underwriting Agencies, Ine.

Floyd County Coal Company, Incorporated

Hardwicke Chemical Company

Hardwicke Export Company

Interamerica Terminals Corporation

Jamestown Life Insurance Company

Joy Corporation

Justine Shipping Corporation

Libby G Corporation

Los Angeles Corporation

Los Angeles Investment Company

Massie Tool & Mold, Ine.

Modern Technical Molding, Ine.

Kam Processing, Ine.

Stork Perforated Products BV (25% by Ethyl Corp.)

The Barclay Group, Ine. (50% by Ethyl Corp.)

The Edwin Cooper Corporation

The Elk Horn Coal Corporation (97% by Ethyl Corp.)

The Elk Horn Corporation

The William L. Bonnell Company, Ine.

Transcontinental Coal Processing, Ine.

ill

TABLE OF CONTENTS

ELSI CTE CETTE ETE TROTTER TR

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EET EPEC E TEC LET EET ETE EET

Reasons for Granting the Writ.................0..0 00a ee

The Decision Below Was An Overly Narrow Construction of

Adamo Which Ignores the Penal Nature of the Civil Action

The Regulations at Issue are not Emission Standards as

ee eee eee er

The Decision Below was an Overly Literal Interpretation of

Section 307(b)(2) Which Improperly Restricts “Judicial

Ee a Leeda Lec akh ee bones 645 0060 O OR 0 OE AS

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iv

TABLE OF AUTHORITIES

Cases

Page

Adamo Wrecking Co. v. United States, 434 U.S. 275 (1978) Passim

Bolling v. Sharpe, 347 U.S. 497 (1954) ..................

Bowles v. Willingham, 321 U.S. 503 (1944) ...............

Brownell v. Tom We Shung, 352 U.S. 180 (1956) .........

Chrysler Corp. v. EPA, 195 U.S. App. D.C. 90, 98-100, 600

eo & h | EB). BRE area ar ie ree

Estep v. United States, 327 U.S. 114 (1946) ..............

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

Getty Oil Co. v. Ruckelshaus, 467 F.2d 349 (8rd Cir. 1972)

Harrison v. PPG Industries, Inc., 446 U.S. 578, 594 (1980)

Heikkila v. Barber, 345 U.S. 229, 236 (1943) .............

Hepner v. United States, 213 U.S. 103 (1909) ............

Helvering v. Mitchell, 303 U.S. 391 (1938) ...............

Hooker Chemical Co. v. EPA, 642 F.2d 48 (3rd Cir. 1981)

Jorden v. De George, 341 U.S. 223, 231 (1951) ...........

Knu-Vise, Ine. v. War Contracts Price Adjustment Bd., 195

a ee Cu ne ac keene

Lees v. United States, 150 U.S. 476, 480 (1893) ..........

Ludeke v. Watkins, 335 U.S. 160 (1948) .................

Marbury v. Madison, 5 U.S. 137 (1803) ..................

Murphy v. United States, 272 U.S. 630, 632 (1926) .......

Oesterich v. Selective Serv. Sys., Local Bd. No. 14, 393 U.S.

IEE os Seance k £2 0 oa ak pee A sO waa on wi ea X40 66

Shaughnessy v. Pedreiro, 349 U.S. 48 (1955) .............

Snowden v. Hughes, 321 U.S. 1 (1944) ..................

Stone v. United States, 167 U.S. 178 (1898) ..............

Trop v. Dulles, 356 U.S. 86, 94 (1958) ..................:,

United States v. California Eastern Line Inc., 348 U.S. 351

CSAS EN ene ake GREE Rds AOA AERO E A eS whe ah

United States v. Carolene Products Co., 304 U.S. 144, 152-54

SGA Oca wcees Wie h doe ee Fe be SAA Ra eee cA e

United States v. Constantine, 296 U.S. 287, 294 (1935) ....

United States v. La Franea. 282 U.S. 568 (1931)..........

Village of Hoffman Est. v. The Flipside, Hoffman Estate, Ine.

I IO ae eae 6s be wa

Wadley Southern R.R. Co. v. Georgia, 235 U.S. 651, 666

SR Aa ae a a ag ei ia be we <a Wks

Washington Terminal Co. v. Boswell, 124 F.2d 235 (D.C. Cir.

Rg Baik Me Fe Rare rear

Yakus v. United States, 321 U.S. 414, 468 (1944) .........

Yiek Wo v. Hopkins, 118 U.S. 356, 373-74 (1886) .........

eve

Vv

Statutes

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2. e SY Peeepergerer. ere rre re vecerTat ees TS

Frankfurter, “Some Reflections on the Reading of Statutes”, 47

Cee Ea TOG: Tee COED Ao 6 66 6s ok o5 ew hene evn cds

Gardner, “The Annotated Alice, Alice’s Adventures in Won-

derland, and Through the Looking Glass by Louis Carroll,”

New American Library; New York, New York, May 1974

Hart, The Power of Congress to Limit Jurisdiction of Federal

Courts, An Exercise in Dialectic,” 66 Harvard L. Rev. 1362,

SETS CIOOE kok 600s kccdccencseeanekewenss weneeee tess

Project, “Reviewability: Statutory Limitations on the Availa-

bility of Judicial Review,” 1973 Duke Law J. 253. .......

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14

16

18

In THE

Supreme Court of Che United States

OCTOBER TERM, 1985

ETHYL CORPORATION,

Petitioner,

V.

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

The petitioner, Ethyl Corporation, respectfully prays that a

Writ of Certiorari issue to review the judgment and opinion of

the United States Court of Appeals for the Fifth Cireuit

entered in this proceeding on June 3, 1985.

OPINIONS AND RECORD BELOW

The opinion of the Court of Appeals for the Fifth Circuit

(Appendix A-1 to A-10) is reported at 761 F.2d 1153. The

opinion of the United States District Court for the Middle

District of Louisiana (Appendix B-1 to B-11) is reported at

576 F. Supp. 80 (M.D. La. 1983). References in this Petition to

“Appendix” are to the five appendices to this Petition (identi-

fied as A-E).

2

JURISDICTION

The Court of Appeals for the Fifth Cireuit rendered its

decision on June 3, 1985 (Appendix A). This Petition for a

Writ of Certiorari has been filed within ninety (90) days of

that date within the time prescribed by 28 U.S.C. § 2101(e).

The Jurisdiction of this Court is founded on 28 U.S.C.

§ 1254(1).

STATUTE TO BE CONSTRUED

United States Code, Title 42:

§ 7607(b) (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 enforcement.” Section 307(b) (2) of the Clean

Air Aci as added by Pub. L. 91-604, 84 Stat. 1685 (1970).

Related Statutes, Sections 112(¢), 113(b), and 307(b) (1) of

the Clean Air Act, and regulations, 40 C.F.R. § 61.64(a) (3)

and 61.65(a), are included as Appendix E.

SUMMARY OF ESSENTIAL REASONS WHY

THIS PETITION SHOULD BE GRANTED

The Court of Appeals for the Fifth Cireuit has limited this

Court’s holding in Adamo Wrecking Co. v. United States, 434

U.S. 275 (1978) (hereinafter “Adame”’) to criminal eases. A

corporate defendant may, according to the Fifth Cireuit’s

holding herein, be exposed to the identical monetary penalty in

a civil suit and be precluded from challenging the validity of a

regulation on its face. The Fifth Cireuit allows EPA to enforce

a facially invalid environmental regulation by labeling the

penalty civil instead of criminal. The Fifth Cireuit’s ruling is

not only illogical, it is contrary to the controlling precedent of

this Court. It is based on a construction of the statute that

oo ~ amare

denies this defendant due process and equal protection, and

that creates an unconstitutional invasion of the judicial power.

Since environmental regulatory statutes provide both erimi-

nal and civil penalties, and a very limited time for challenge,

the Fifth Cireuit opens the door for unbridled administrative

abuse. Of course, such a regulation (the asbestos regulation in

Adamo for example) might not be enforceable by a criminal

prosecution, but the identical monetary penalty could be col-

lected in a civil action by the Fifth Cireuit’s rule. The result

achieved by the Fifth Circuit will, if let stand, contribute to the

publie’s perception of the “Through the Looking Glass” quality

in the nation’s governance decried by this Court in Adamo.'

STATEMENT OF FACTS

On February 9, 1983, Ethyl Corporation (hereinafter

“Ethyl” was sued by the United States of America “pursuant

to Section 113(b) of the Clean Air Act, 42 U.S.C. § 7413(b) for

civil penalties and injunctive relief to abate continuing dis-

charge of vinyl chloride, a hazardous air pollutant, in violation

of Section 112 of the Clean Air Act, 42 U.S.C. § 7412.”

'See Adamo Wrecking Company v. United States, 434 U.S. 275 at 283.

Now, the Administrator has Humpty Dumpty’s power to make a

regulation an emission standard by mere designation, if he escapes

challenge in che first 60 days.

“When I use a word,’ Humpty Dumpty said in a rather scornful

tone, ‘it means just what I chose it to mean — neither more nor

less.’

““The question is,’ said Alice, ‘whether you can make words

mean so many different things.’

“*The question is,’ said Humpty Dumpty, ‘wnich is to be

master — that’s all.’”

M. Gardner, “The Annotated Alice, Alice’s Adventures in Won-

derland, and Through the Looking Glass by Louis Carroll,” New

American Library; New York, New York, May 1974, at page 269.

The Complaint alleged 98 specific discharges of vinyl chlo-

ride from 1977 through 1982 in violation of either the relief

valve discharge provision of 40 C.F.R. § 61.65(a) or the manual

vent valve discharge provision of 40 C.F.R. § 61.64(a) (3).

(Appendix C-5-14.) The allegations were verbatim from the

reports required to be submitted by Ethyl and involved many

reactors and vessels within the plant.

The regulations in question are portions of the National

Emission Standard for Vinyl Chloride promulgated on October

21, 1976 (41 Fed. Reg. 46560, now codified at 40 C.F.R. § 61.60

et seq.). (Appendix C-2, paragraph 9.)

Ethyl moved to dismiss the Complaint pursuant to F.R.C.P.

12(b) (6), contending that when 40 C.F.R. $$ 61.64(a) (3) and

61.65(a) were promulgated the Administrator had no statutory

authority to promulgate, design, equipment, or work practice

standards as emission standards. (Appendix D-1-2, paragraph

5.)

The District Court found that the regulations were not

emission standards, applying the tests set forth by this Court

in Adamo. The Court entered a final Judgment dismissing the

Complaint on July 6, 1983 (Appendix B).

The United States appealed to the United States Court of

Appeals for the Fifth Cireuit. The Fifth Cirzuit held that

Adamo was not controlling because that case was a criminal

prosecution whereas the case at bar is a suit for “civil penal-

ties” (Appendix A).

REASONS FOR GRANTING THE WRIT

INTRODUCTION

Had Ethyl been charged with criminal violations of regula-

tions promulgated under Section 112 of the Clean Air Act, and

if the violations were proved beyond a reasonable doubt, a fine

of up to two million, four hundred fifty thousand dollars could

have been imposed if all 98 violations were proved. In aecord-

ance with Adamo, Ethyl could have challenged the regulations

as not being emission standards and § 307(b) (2) would not

have barred review.

However, according to the Fifth Cireuit, the United States

may now proceed to sue for a civil penalty of two million, four

hundred fifty thousand dollars for identical violations. Since

the District Court lacks jurisdiction, according to the Fifth

Cireuit, Ethyl cannot challenge the facial invalidity of the

regulation.

Under the Fifth Cireuit’s approach, but for the statute of

limitations, the United States could have sued the Adamo

Wrecking Company for a “civil penalty,” equal to the sum this

Court denied in the prior criminal proseecuuion, for violation of

a regulation that this Court held was invalid. Stone v. United

States, 167 U.S. 178 (1898). The Distriet Court would have

been barred by § 307(b) (2) from examining whether the ‘“‘emis-

sion standard” was in fact an “emission standard” and the

defendant would not have been able to avoid a trial, despite its

previous victory in this Court.

The case at bar not only affects the entire polyvinyl chloride

industry’, it raises fundamental due process, equal protection,

*Ethy! is aware of 17 other enforcement actions involving alleged

violations of 40 C.F.R. §61.65(a) and/or 61.64(a) (3). Of these, six

have been settled: U.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. Conoeo, Ine., No. 83-1916-E

(W.D. Okla. 1985); U.S. v. Conoco, Ine., No. EC-37-LS-P (N.D.

Miss. 1985); U.S. v. Conoco, Ine., No. 83-2518 (W.D. La 1985).

Of the eleven pending cases, nine are located in the Fifth Circuit:

U.S. v. B.F. Goodrich, No. C82-1043-P(J) (W.D. Ky. 1983); U.S. v.

B.F. Goodrich and Goodyear Tire and Rubber Company, No. 83-

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

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

Borden, Ine. and Monochem, Ine., No. 83-744-B (M.D. La.); U.S. v.

and separation of powers issues under the Constitution. The

constitutional problems arise because the Fifth Cireuit refused

to recognize Adamo as controlling precedent or to apply the

teaching of Adamo. The erroneous result stems from attempt-

ing to distinguish between the criteria of review in penal

actions (whether criminal or civil); failing to apply the defini-

tion of “emission standard” established by this Court; constru-

ing a judicial review preclusion to deny due process and equal

protection; and aequiescing to a Congressional invasion of the

judicial provinee. The Fifth Circuit erred by narrowly ¢constru-

ing Adamo, failing to test the regulation at issue, and by

broadly interpreting “judicial review” to prevent the Defen-

dant from raising a fundamental defense — the facial invalid-

ity of the regulation to be enforced!

THE DECISION BELOW WAS AN OVERLY NARROW CON-

STRUCTION OF ADAMO WHICH IGNORES THE PENAL

NATURE OF THE CIVIL ACTION

The Fifth Cireuit held that this Court’s decision in Adamo

does not control the case at bar on the single ground that

Adamo was a criminal prosecution, whereas the ease at bar is a

eivil action (Appendix A at A-6).

At the outset it should be noted that the decision in Adamo,

in accordance with sound principles of judicial efficiency,

decided the criminal case before the Court. Nothing in Adamo

precluded application to civil cases.

It is undisputed that the Administrator lacked explicit statu-

tory authority to promuigate equipment, design, work practice,

or operational requirements when $§ 61.65(a) and 61.64(a) (3)

were issued. The challenge here is to the Administrator’s

authority to transmute these regulations into “emission stan-

dards” by labeling them. The challenge is one that can be, and

was decided by the District Court, on the face of the statute

and regulation within the limited review authorized by Adamo.

Congressional labeling as a “civil penalty” does not end the

Court’s duty to determine whether the statute is indeed civil or

penal. If penal, Adamo clearly controls. As Mr. Justice

Warren has observed:

“How simple would be the tasks of constitutional adju-

dication and of law generally if specific problems could be

solved by inspection of the labels pasted on them!”

Trop v. Dulles, 356 U.S. 86, 94 (1958).

Justice Roberts discussed a penal tax provision as follows:

[T jhe item is variously denominated an occupation tax,

an excise tax, and a special tax. If in reality a penalty it

cannot be converted into a tax by so naming it, and we

must ascribe to it the character disclosed by its purpose

and operation regardless of name.

United States v. Constantine, 296 U.S. 287, 294 (1935). Accord,

United States v. La Franca, 282 U.S. 568 (1931).

The Fifth Cireuit implicitly assumes that a different stan-

dard of construction would govern an action for civil penalties.

As is shown below, the Fifth Cireuit’s conclusion does not

follow from its premise. Ethyl does not claim that Congress

may not authorize collection of a penalty in a civil action,

Hepner v. Umied States, 213 U.S. 103 (1909), or that a civil

defendant is afforded as many constitutional safeguards as are

available to criminal defendants, Helvering v. Mitchell, 303 U.S.

391 (1938). However, an action for civil penalties is governed

by stricter standards than a civil damage suit between private

parties. The defendant is confronted with the full power of the

government just as in a criminal prosecution. The defendant is

entitled to certain fundamental constitutional protections be-

yond those applicable in a civil damage action. Where a penal

intent is present, fundamental constitutional guarantees at-

tach. Lees v. United States, 150 U.S. 476, 480 (1893).

Due process, even in a civil penalty suit, includes trial before

a court with unfettered jurisdiction to determine whether the

statute or regulation to be enforced is valid on its face. As to

facial validity, there is no constitutionally different standard

whether the penal action be civil or eriminal. This Court

recently considered a facial validity challenge to an ordinance

which “imposes only civil penalties” because of the penal

purpose of the ordinance. Village of Hoffman Est. v. The

Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982). A

challenge to the facial validity of a deportation order has been

conducted “[dlespite the fact that this is not a criminal

statute.” Jorden v. De George, 341 U.S. 223, 231 (1951). See

also, FCC v. American Broadcasting Co., 347 U.S. 284, 296

(1954). Numerous decisions of this Court involving facial

challenges to non-criminal statutes under the vagueness stan-

dard are collected at 40 L. Ed. 2d 823.

Even in purely civil cases, ihe congressionai denial of a

challenge to facial validity has been said to be beyond constitu-

tional limitations. In a coneurring opinion in Bowles v. Willing-

ham, 321 U.S. 503, 525-26 (1944). Mr. Justice Rutledge said:

[T]}his leaves the question whether Congress also can

confer the equity jurisdiction to decree enforcement and

at the same time deprive the Court of power to consider

the validity of the law or regulation and to govern its

decree eecordingly.

Different considerations, in part, determine this ques-

tion from those controlling when enforcement is by crimi-

nal sanction. The constitutional limitations specially

applicable to criminal trials fall to the side. Those pro-

ceedings, including whatever matters affecting discrimina-

tion are applicable under the Fifth Amendment, and to the

9

independence of the judicial power under Article III, in

relation to civil proceedings remain applicable.

All this is pertinent to whether Congress, in providing

civil enforcement of the Act and the regulations, can do

what in my opinion it cannot require by way of criminal

enforcement of this statute, namely by providing the

single opportunity to challenge the validity of the regula-

tion and making this available for the limited period of

time, constitute the method afforded the exclusive mode

for securing decision of that question and, either by virtue

of the taking advantage of it or by virtue of the failure to

do so within the time aliowed, foreclose further opportu-

nity for considering it.

In my opinion Congress can do this, subject however to

the following limitations or reservations, which I think

should be stated explicity; (1) The order or regulation

must not be invalid on its face; ....

id. at 525-26. The matter in Bowles, was price regulation

(order establishing maximum rents in certain areas during

World War II, justified by the war powers), but a challenge to

the regulation on its face was not to be precluded. The

distinction drawn by the Fifth Cireuit is inapplicable even in a

purely civil ease. In fact, the majority opinions in both Bowles,

supra, and Yakus v. United States, 321 U.S. 414 (1944), com-

mented that no challenge was raised to the facial validity of the

regulations, with the implication that a different result would

have been required if such challenge were barred.

It has never been suggested that the Clean Air Act permits

both criminal and civil penalties to be collected for the same

emission. The penal intent of §113(b) bars such a result.

“TA]n acquittal is not a bar to subsequent civil action arising

out of the same facts on which the criminal proceeding was

based...” Stone v. United States, supra. “But, where the

subsequent proceeding is to punish, the first action is a bar.”

Murphy v. United States, 272 U.S. 630, 632 (1926). The penal

10

intent also bars the Fifth Cireuit’s distinction of Adamo.

Whether Ethyl is punished civilly or rudely, the elements of the

eause of action do not change, nor does the District Court’s

power to review the facial validity of a regulation brought

before it fer enforcement.

The Fifth Cireuit’s holding also conflicts with the analysis of

the Third Cireuit in Hooker Chemical Co. v. EPA, 642 F.2d 48

(3rd Cir. 1981). The Court noted in holding the issue moot:

Hooker invokes Adamo Wrecking, supra, in challenging

the employment of § 61.65(a) to support a § 113(a) emis-

sion standard violation. Because the § 113 order has been

withdrawn, and Hooker would be able to raise the alleged

infirmity as a defense in enforcement proceedings, we

would be rendering an advisory opinion to consider the

matter on the merits at this stage.

Id. at 53, n.3. As in the ease at bar, Hooker would have faced

civil penalties if the enforcement action had been pursued. The

Third Cireuit clearly recognized that Adamo was controlling in

a civil penalty suit.

THE REGULATIONS AT ISSUE ARE NOT EMISSION

STANDARDS AS DEFINED BY THE ADAMO COURT

The Fifth Cireuit held that “we have no trouble labeling the

regulations as emission 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.” [See

Appendix A-9]. In so holding the Fifth Cireuit was clearly in

error. The regulations at issue do not establish any quantita-

tive limit on emissions. The regulations only prohibit preventa-

ble emissions. The test of preventability is obviously a

qualitative, ngt a quantitative, standard. For example, emis-

sion incidents in the Complaint range from about 20 lbs.

[Appendix C-10] to approximately 13,200 lbs. [Appendix

11

C-12]. At trial it is possible that the trier of fact could find a

20 lb. incident was “preventable” and thus a violation but the

13,200 lb. event was not. The quantity vented is not determini-

tive of anything.

In Adamo, the defendant had only two choices. It could have

zero emissions or it could comply with the work practices

required by the regulations. The vinyl chloride standard gives

Ethyl the same two choices. Ethyl may have zero emissions or

Ethyl may comply with the detailed instructions set out by

EPA in 40 Fed. Reg. 59539. if any emission does oecur, the

Trial Court will not determine whether Ethy!] has violated the

regulation by any quantifiable test, but by determining if such

a discharge was “avoidable.” Whether the discharge was

avoidable depends, as EPA admits, on whether Ethyl has

eomplied with the preventive measures required by EPA to

prevent “avoidable” discharges. These preventive measures,

listed in the Preamble of the proposed regulations are long and

detailed:

A zero emission limit is being proposed for relief dis-

charges 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 chemicals 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 han-

dling upset condition, and utilizing 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 gasholder or recovery system. The conditions

which lead to discharges can also be prevented in most

eases by proper handling and transfer of vinyl chloride or

materials containing vinyl chloride. Discharges which

cannot be avoided by taking such preventive measures,

such as those caused by natural disaster, will not be in

violation of the proposed standard if the owner or operator

12

notifies EPA within 10 days concerning the nature and

eause of the discharge. This notification provision is

necessary to permit EPA to investigate the surrounding

conditions and determine whether the discharge could

have been prevented.

40 Fed. Reg. 59539. As the preceding shows, EPA’s determi-

nation of whether a source has violated this regulation will be

based not on whether a specific quantity was emitted but on

whether the source has implemented the recommended mea-

sures required by EPA or taken equivalent steps to prevent

emissions.

Ethyl agrees that, if the regulation simply read “there shall

be no discharge to the atmosphere’, the regulation would

impose a quantitative limitation and would be an emission

standard. Had the regulation been so worded, its effect easily

could have been ascertained by the industry, and appropriate

judicial review could have been obtained. However, the regula-

tion on its face is not a “no discharge” limitation. The

regulation only forbids discharges which are not an emergency

relief discharge. The regulation further defines an emergency

relief discharge as “a discharge which could not have been

avoided by taking measures to prevent the discharge”. Thus,

the fact that an emission occurred on a particular date does not

end the inquiry, as it would if the limitation were truly zero.

The Fifth Cireuit ignored the District Court’s analysis that

the issue at trial will be preventability of the discharge. The

government’s allegations of emissions are verbatim from

Ethyl’s emergency discharge reports required by the rules.

The Fifth Circuit assertion that the regulation contains a “no

discharge”’ limitation ignores the facts that must be proven in

an enforcement proceeding. The practical guide to whether the

regulations are “emission standards” is the test applied by the

District Court. If the regulations were emission standards,

violation would be established by the fact that an emission in

13

excess of a proscribed level had occurred. Plant design,

equipment, work practices, and operations would be irrelevant

except perhaps in mitigation. In contrast, the fact that an

emission occurred is not dispositive, the central issue to be

tried is preventability of the emission. The Biblical test — “by

their fruits ye shall know them” — is the only reliable guide to

determining whether the so-called “emission standard” is in

fact an “emission standard.”

THE DECISION BELOW IS AN OVERLY LITERAL

INTERPRETATION OF SECTION 307(b) (2) AND

IMPROPERLY RESTRICTS “JUDICIAL REVIEW”

The Fifth Cireuit errs by giving an overly literal interpreta-

tion to Section 307(b)(2).° The Fifth Cireuit apparently

reasons that Congress intended a regulation promulgated with-

out statutory authority (facially invalid), to be validated by

Section 307(b) (2) if not challenged within 60 days.

In his coneurring Adamo opinion, Mr. Justice Powell specifi-

cally commented on the constitutional infirmity of Section

307(b) (2), which would have occurred had the majority held

that a Court could be required to enforce a void regulation,

enacted in excess of the statutory authority, merely because

such regulation had not been timely challenged when promul-

gated: “As important as environmental concerns are to the

country, they are not comparable — in terms of emergency

justifying the short cutting of normal due process rights — to

the need for national mobilization in wartime of economic as

well as military activity.” Adamo at 290. The non-emergency

nature of this litigation is perhaps best illustrated by the

government’s six year delay in bringing this civil suit.

* “Taking phrases literally instead of as they are commonly under-

stood is characteristic of the creatures behind the looking glass,

and basis for much of Carroll’s humor.”

“The Annotated Alice,” supra, at 280, note 5.

14

Nor was Mr. Justice Powell’s concern transitory — it was

reaffirmed in Harrison v. PPG Industries, Inc., 446 U.S. 578,

594 (1980). There Justice Powell noted that the constitutional

difficulties ‘well may counsel a narrow construction of

§ 307(b) (1), ef. Chrysler Corp. v. EPA, 195 U.S. App. D.C. 90,

98-100, 600 F.2d 904, 912-14 (1979) (parallel provisions of

Noise Control Act)...”. The due process clause limits the

power of Congress to restrict access to the Courts. Had the

Fifth Cireuit recognized that Congress cannot bar judicial

review to the point of denying due process, it would have

reached the opposite result.

Apparently, the Fifth Cireuit recognizes that its interpreta-

tion offends traditional notions of due process and would

undereut the constitutionality of Section 307(b) (2), noting

Justice Powell’s concern in Adamo. To escape from this

dilemma, the Fifth Circuit simply asserts that the Defendants

at bar have no standing to complain of the due process

denrivation since they participated in the administrative pro-

ceedings giving rise to the challenged regulations (see Appen-

dix A-8, note 8). While the Fifth Circuit attempts to avoid one

due process problem — notice and opportunity to be

heard — it creates a more fundamental due process _is-

sue — equal application of the law. Such reasoning is obvi-

ously fallacious. As Justice Frankfurter said:

[I]t is not lightly to be presumed that Congress sought

to infringe on ‘very sacred rights’.

[I]t is not to be assumed as a matter of course that

when Congress adopts a new scheme for Federal Indus-

trial Regulation, it deals with all situations falling within

the general mischief which gave rise to the legislation.

The underlying assumptions of our dual form of govern-

ment, and the consequent presuppositions of legislative

draftsmanship which are expressive of our history and

15

habits, cut across what might otherwise be the implied

range of legislation.

Frankfurter, “Some Reflections on the Reading of Statutes”, 47

Columbia L. Rev. 527, 539-40 (1947).

Here the Fifth Circuit has concluded that a regulation, void

on its face, may be constitutionally enforced in a civil suit and,

presumably, a criminal action, against any corporation that

participated in the administrative process, though perhaps not

against those having no adequate notice. To make such a

distinction denies these defendants equality before the law

and, thus, due process in its most fundamental sense. A Court

may not apply a statutory construction which imputes to

Congress the intention to deny due process nor can a Court

justify such an aberrant interpretation on the ground that the

defendants at bar, having participated in the ad» in.strative

proceedings, lack standing to raise a due process challenge.

The Fifth Cireuit’s attempt to avoid the due process issue

has been at the expense of equal protection before the Courts.

Although the Fifth Amendment lacks the explicit command for

equal protection found in the Fourteenth Amendment, this

Court has held that due process also forbids discrimination,

Bolling v. Sharpe, 347 U.S. 497 (1954). A discriminatory

application of statutory construction cannot be permitted,

based on prior exercise of constitutionally protected rights.

The Fifth Circuit also ignores the inherent general jurisdic-

tion of the District Court and its traditional duty to refuse to

enforce statutes or regulations which are invalid on their face.

Thus, the Fifth Cireuit approves a Congressional invasion of

the judicial province offensive to the traditional separation of

powers established by the Constitution. The United States,

having invoked the jurisdiction of the District Court, now

claims that that very Court lacks jurisdiction to examine the

government’s pleading and determine whether a cause of ac-

tion is set forth therein. The Court’s duty to interpret the laws

16

is fundamental and is long settled, Marbury_v. Madison, 5 U.S.

137 (1803).

The Fifth Circuit could have avoided the constitutional due

process, equal protection and separation of powers issues by

inlerpreting the sweeping language of Congress in a way that

is consistent with Congress’ limited power to preclude judicial

review. Had the Court recognized that Section 307 cannot

*In his dialectic discussion, Professor Hart makes the following

comments on the issue before the Court:

“Q. Let’s stop beating around the bush and get to the central

question. The bald truth is this, isn’t it, that the power to

regulate jurisdiction is actually a power to regulate

rights — rights to judicial process, whatever those are, and

substantive rights generally? Why, that must be so. What can a

court do if Congress says it has no jurisdiction, or only re-

stricted jurisdiction? It’s helpless — helpless even to consider

the validity of the limitation, let alone do anything about it if its

invalid,

“A. Why, what monstrous illogic! To build a mere power to

regulate jurisdiction into a power to effect rights having nothing

to do with jurisdiction! And into a power to do it in contradic-

tion to all the other terms of the very document which confers

the power to regulate jurisdiction!

“Q. Will you please explain what's wrong with the logic?

“A. What's wrong, for one thing, is that it violates a necessary

postulate of constitutional government — that a court must al-

ways be available to pass on claims of constitutional right to

judicial provess, and to provide such process if the claim is

sustained.

“Q. Whose Constitution are you talking about — Utopia’s or

ours?

“A. Ours. It’s a perfectly good Constitution if we know how to

interpret it.

“Q. Have you got the patience to spell out just what my fallacies

are?

“A. There are so many of them it will take a little time. Let’s

start with the most obvious one. Your point, at best can apply

only to plaintiffs. Perhaps a plaintiff does have to take what

Congress gives him or doesn’t give him, although I have my

17

preciude facial review, the invasion of judicial power would

have been avoided. This Court has long held that review as to

matters of law must be available. The early railroad rate cases

make clear that:

“[A] statute like the one here involved (under which

[civil] penalties of $5,000 a day could be imposed for

violating orders of the commission) would be void if

access to the courts to test the constitutional validity of

the requirement was denied... .”

Wadley Southern R.R. Co. v. Georgia, 235 U.S. 651, 666 (1915).

The Court’s duty to avoid a constitutionally invalid construe-

tion of a statute is well established.

The applicability of a limited construction to Section 307 was

noted soon after its first judicial interpretation. In comment-

ing on the Third Circuit's strict construction of Section 307

(b) (1) in Getty Oil Co. v. Ruckelshaus, 467 F.2d 349 (3rd Cir.

1972), the commentator finds that problems of constitutional

dimension are avoidable under precedents of this Court.

“The review sections of the Clean Air Amendments and

FWPCA simply provide that issues not reviewed in accor-

dance with their procedures ‘shall not be subject to judi-

cial review in civil or criminal proceedings for

enforcement.’

doubts about it. But surely not a defendant. Its only a

limitation on what @ court can do once it has jurisdiction, not a

denial of jurisdiction, that can hurt a defendant. And if the

court thinks the limitation invalid, it’s always in a position to say

so, and either to ignore it or lei the defendant go free. Crowell v.

Benson and the Yakus case make that clear, don’t they?

“Q. You're saying, then, that the power to regulate jurisdiction

is subject in part to the other provisions of the Constitution?

“A. No. It’s subject in whole not in part ...”

Hart, “The Power of Congress to Limit the Jurisdiction of Federal

Courts: An Exercise in Dialectic,” 66 Harvard L. Rev. 1362, 1373

(1953) (footnotes omitted).

18

The courts have interpreted similar language in other

statutes as not precluding review of all issues or under all

circumstances. For example, statutory provisions declar-

- ing that certain administrative determinations ‘shall not

be reviewed or redetermined by any court’ have been

reduced to merely a prohibition against review of very

limited findings of fact. [United States v. California East-

ern Line Inc., 348 U.S. 351 (1955).] Although statutes

have often provided that the decision of the Administrator

or Secretary ‘shall be final’, the courts have ordinarily

interpreted ‘final’ as not meaning final for purposes of

judicial review and have granted review. [See Oesterich v.

Selective Serv. Sys., Local Bd. No. 11, 393 U.S. 233 (1968);

Estep v. United States, 327 U.S. 114 (1946). See also

Brownell v. Tom We Shung, 352 U.S. 180 (1956); Shaugh-

nessy v. Pedreiro, 349 U.S. 48 (1955).] Similarly, the

courts have upheld limitations on review except for ques-

tions of ‘interpretation and constitutionality’ [see Ludeke

v. Watkins, 335 U.S. 160 (1948); Knu-Vise, Inc. v. War

Contracts Price Adjustment Bd., 195 F.2d 198 (D.C. Cir.

1946).], or unless the action was beyond the agency’s

jurisdiction [see Washington Terminal Co. v. Boswell, 124

F.2d 235 (D.C. Cir. 1941), aff'd, 319 U.S. 732 (1942) ], or

except for enforcement of due process requirements. [See

Heikkila v. Barber, 345 U.S. 229, 236 (1943).]”

Project, “Reviewability: Statutory Limitations on the Availabil-

ity of Judicial Review,” 1973 Duke Law J. 253, 272.

As Mr. Justice Rutledge pointed out in his Yakus dissent:

[W]henever the judicial power is called into play, it is

responsible directly to fundamental law and no other

authority can intervene to foree or authorize the judicial

_ body to disregard it. The problem therefore is not solely

one of individual right or due process of law. It is equally

one of the separation and independence of the powers of

government and of the constitutional integrity of the

judicial process, more especially in criminal trials.

Yakus v. United States, 321 U.S. 414, 468 (1944).

_ iia dlial

19

Justice Rutledge continues, finding the idea “is entirely

novel that regulations have greater immunity to judicial seru-

tiny than statutes have.” Jd. He also notes that “Congress

could not require judicial enforcement of an unconstitutional

statute. The same is true of an unconstitutional regulation.”

Id. at 469. Further, “[t]he Constitution does not make judicial

observance or enforcement of its basic guaranties depend on

whether their violation appears from the face of legislation or

only from its application to proven facts. Snowden v. Hughes,

321 U.S. 1; Yick Wo v. Hopkins, 118 U.S. 356, 373-74; United

States v. Carolene Products Co., 304 U.S. 144, 152-54.” Id. at

484. Section 307(b)(2) must be construed to reeognize the

inherent limitations on the power of Congress to invade the

judicial province of an Article III Court. This Court recog-

nized the inherent limits of Congress’ power to restrict judicial

review by its holding in Adamo. The Fifth Cireuit now seeks to

distinguish the inherent due process limitation on the power of

Congress when the government seeks to collect a fine through a

criminal process from the inherent due process limitations

when the government seeks to receive the same money as a

9 5

“eivil penalty”.

° “Whatever temptation the statesmanship of policy-making might

wisely suggest, construction must eschew interpolation and eviscer-

ation.” Frankfurter, “Reflections on the Reading of Statutes,” 47

Columbia L.R. 527-33 (1947).

20

PRAYER

The Court is respectfully requested to grant the petition

herein, reverse the decision of the Fifth Cireuit, and dismiss

the government’s complaint.

Respectfully submitted,

. WALTER CONRAD

Attorney of Record

for Petitione

Of Counsel AWTIN L. Mc GREGOR ° /

BAKER & Botts Attorney for Petitioner

3000 One Shell Plaza

Houston, Texas 77002

(713) 229-1230

NORVELL & ASSOCIATES

6363 Woodway, Suite 275

Houston, Texas 77057

(713) 266-1914

Davip C. BACH

RicHARD M. LAVERS

ETHYL CORPORATION

451 Florida Boulevard

Baton Rouge, Louisiana 70821

(504) 388-8011

PROOF OF SERVICE

I certify that a copy of this Petition for Writ of Certiorari

was hand-delivered to the Solicitor General, Department of

Justice, Washington, D.C. 20530, on this 30th day of August,

1985.

APPENDIX A

United States v. Ethyl Corp.

Cite as 761 F.2d 1153 (1985)

United States of America,

Plaintiff-Appeliant,

7.

Ethyl Corporation,

Defendant-Appellee.

United States of America,

Plaintiff-Appellant,

V.

Occidental Chemical Corporation and Firestone Tire and

Rubber Co., Defendants-Appellees.

Nos. 83-3537, 83-3656.

United States Court of Appeals,

Fifth Circuit.

June 3, 1985.

The United States Environmenta! Protection Agency instituted

civil enforcement proceedings in Federal District Court against

two companies seeking damages and injunctive relief on claim

that companies had exceeded allowable emission levels of vinyl

chloride and polyvinyl chloride under manual vent valve and relief

valve regulations promulgated under the Clean 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

dismissing complaints for failure

207, 216 (Sth Cir.1984). The Accord rule does not appear to

be a matter of substantive law—a rule of law that would

cause “the character or result of [the] litigation materially to

differ because the suit had been brought in a federal court.”

Hanna v. Plumer, 380 U.S. 460, 467, 85 S.Ct. 1136, 1141, 14

L.Ed.2d 8, (1965).

A-2

In federal practice, the trial judge has wide discretion in

formulating the charge provided that the instructions show

no tendency to confuse «« mislead the jury with respect to

the applicable principles of law. Rohner, Gehrig & Co. v.

Capital City Bank, 655 F.2d 571, 580 (Sth Cir.1981). Since

Petty admits that the instruction correctly sets forth the

definition of a product defect under Texas law, his claim of

error is meritless.

to state a claim upon finding that regulations had been promul-

gated in excess of the EPA’s authority under the 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.

Federal Courts—218

District Court had no subject-matter jurisdiction, in civil en-

forcement proceedings brought by the United States Environ-

mental Protection Agency against two companies on claim that

companies had exceeded the allowable emission levels of vinyl

chloride and polyvinyl chloride under manual vent valve and relief

valve regulations promulgated under the Clean Air Act, to con-

sider substantive validity of regulations. The Clean Air Act,

§§ 112, 307(b), as amended, 42 U.S.C.A. §§ 7412, 7607(b).

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

S. Almy, Robert L. Klarquist, Appellate Section, Ruth Mc-

Quade, Environmental Enforcement Section, Land & Nat. Re-

sources Div., U.S. Dept. of Justice, Washington, D.C., R. Gordon

Kean, Baton Rouge, La., for plaintiff-appellant.

Richard Marshall Lavers, Baton Rouge, La., Baker & Botts,

F. Walter Conrad, Jr., Martin L. McGregor, Houston, Tex., for

Ethyl Corp.

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

ace C. Lane, Baton Rouge, La., for Occidental Chemical.

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

Firestone.

A-3

Appeals from the United States District Court for the Middle

District of Louisiana.

Before CLARK, Chief Judge, GOLDBERG and RUBIN,

Circuit Judges.

GOLDBERG, Circuit Judge:

The United States Environmental Protection Agency (““EPA”’)

instituted these two consolidated civil enforcement proceedings in

federal district court, one against appellee Ethyl Corporation, the

c ‘er against appellees Occidental Chemical Corporation and

Firestone Tire and Rubber Company. The EPA sought damages

and injunctive 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. §§ 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 US.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 juris-

diction to consider the substantive validity of the regulations, we

reverse.

In 1970, Congress amended the Clean Air Act to authorize the

Administrator of the EPA to promulgate national “emission

standards”: for hazardous air pollutants.” Pub.L. No 91-604,

' The language of § 61.64(a) (3) and § 61.65(a) is identical except 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 dis-

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

relief valve on any equipment in vinyl chloride service. An emer-

gency relief discharge means a discharge which could not have been

avoided by taking measures to prevent the discharge.

40 C.F.R. § 61.65(a).

? As defined in the 1970 amendments, “[t]he term ‘hazardous air

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

A-4

§ 112(b)(1)(B), 84 Stat. 1685 (1970) (codified 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

discharged into the environment. Unlike “work practice stan-

dards,” emission standards do not tell companies how to dis-

charge—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

standard is applicable and which in the judgment of the Administrator

may cause, or contribute to, an increase in mortality” 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 ond polyvinyl chloride were listed as

hazardous air pollutants at the time of appellants’ alleged violations

between 1977 and 1982, 40 Fed.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 Adminis-

trator 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 limitations either be-

cause the hazardous pollutant cannot be emitted through a conveyance

or cannot be measured. Pub.L. No. 95-95, § 112(c)(1), (2), 92 Stat.

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

Administrator can now promulgate a “design, equipment, work practice

or operational standard” as well as an emission standard, work practice

standards promulgated prior to the effective date of the 1977 amend-

ments are invalid for being in excess of the Administrator’s authority

under the Act. PPG Indus. v. Harrison, 660 F.2d 628, 636 (Sth

Cir.1981).

A-5

days of the Administrator’s action.* Jd. § 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 respect to which review could have been

obtained under paragraph (1) shall not be subject to judicial

review in civil or criminal proceedings for enforcement.” /d.

§ 7607(b) (2). In the present case, the Administrator’s “action”

occurred on October 20, 1976, when the vinyl and polyvinyl

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, then, 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.

Luckie 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. Train, 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.Ed.2d 638 (1978). In Adamo

Wrecking, the Court held that, despite the clear language of

section 307(b), a criminal defendant 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 emission stan-

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

Pub.L. No. 91-604, § 307(b) (1), 84 Stat. 1676 (1970) (current 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 effect 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.2d 580 (1976); First Nat'l Bank of Lamarque v.

Smith, 610 F.2d 1258, 1262-63 (Sth Cir.1980).

A-6

dards in name only. 576 F.Supp. 80, 86 (M.D.La.1983). In the

district court’s view, the regulations, rather than merely prescrib-

ing 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 dis-

charge “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 promulgated,” the district court held

the regulations to be invalid and hence dismissed 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 imprisonment. The court’s opinion implicitly acknowl-

edged 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 proceedings, criminal as

well as civil. See Adamo Wrecking, 434 U.S. at 284, 98 S.Ct. at

572. The Court’s ratio decidendi was unambiguous:

Since Congress chose to attcch 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 Administrator, it is crucial to determine whether

the Administrator’s mere designation of a regulation as an

‘emissions 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 congressional intent

underlying section 307(b}’s preclusive effect in criminal prosecu-

tions, the Court further relied on “the familiar rule that, ‘where

there is ambiguity in a criminal statute, doubts are resolved in

° See note 3 supra.

A-7

favor of the defendant.” Jd. 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 language and

Congress’s manifest intent to avoid protracted and inconsistent

adjudications over the validity of EPA emission standards,’ we

’ 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 require 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 congressional 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”); Chrysler 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 Resources Defense Council, Inc. v. EPA, 512 F.2d

1351, 1353-56 (D.C.Cir.1975); Granite City Steel Co. v. EPA, 501 F.2d

925, 926 (7th Cir.1974).

This assessment of congressional intent echoes ou. recent decision in

RSR Corp. v. Donovan,747 F.2d 294 (Sth 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 exclusive vehicle for pre-enforcement review of standards promul-

gated under OSHA, but which does not speak to the preclusive effect of

that act on a federal court’s jurisdiction 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 Congress

intended to foreclose judicial review under the circumstances of RSR

Corp. there is little room for doubt regarding congressional 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 Oil Co. v. FERC, 707 F.2d 230, 235

(Sth Cir.1983) (“Anyone aggrieved by a rule established in a rulemak-

ing must challenge it within the prescribed appeal period or forever hold

A-8

would be remiss to allow the narrow holding of Adamo Wrecking

to bulldoze the statute’s jurisdictional limitations in civil enforce-

ment proceedings.* Cf. Yakus v. United States, 321 U.S. 414, 64

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

his peace.”) with Texas v. United States, 749 F.2d 1144, 1146-47 (Sth

Cir.1985) (construing 60-day provision for judicial review in Adminis-

trative 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 concern

over the due process implications of section 307(b)’s jurisdictional

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 inade-

quate notice. See Harrison 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., concurring). 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.

Natural 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 jurisdictional question. See, e.g.,

E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 125, 97 S.Ct.

A-9

for the moment that this limited inquiry is warranted, we take

heed of the Court’s cautionary words in Adamo Wrecking:

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 precluded by § 307(b)(2) of the Act. This

tney 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 procedures in promul-

gating the regulation in question, or whether the particular

regulation is arbitrary, capricious, or supported by the admin-

istrative record. Nor is the court to pursue any of the other

familiar inquiries which arise in the course of an administra-

tive review proceeding. The question is only 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 US. at 285, 98 S.Ct. at 573. In answering this question, we

have no trouble labeling the regulations as emission 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 regulations can be violated only by transgres-

sions 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 characterization of

them as such is unreasonable, see, e.g., Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, US. , 104 S.Ct.

2778, 2781-83, 81 L.Ed.2d 694 (1984); Columbia Broadcasting

System, Inc. v. Democratic National Committee, 412 U.S. 94,

121, 93 S.Ct. 2080, 2095, 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, 801, 13 L.Ed.2d 616 (1965); PPG Industries v.

965, 973, 51 L.Ed.2d 204 (1977); Louisiana Chemical Ass'n v. Bing-

ham, 657 F2d 777, 782 & n. 7 (Sth Cir.1981).

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Harrison, 660 F.2d 628, 633 (Sth 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 determine as a

preliminary matter whether these EPA regulations 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 substantive validity of sections 61.64(a)(3) and

61.65(a) under the Clean Air Act, and the government, qua

cleaner, may press its suit.

REVERSED AND REMANDED.

B-1

APPENDIX B

576 Federal Supplement

United States of America

Vv.

Ethyl Corporation.

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

United States District Court,

M.D. Louisiana.

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 dis-

charges 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

regulations 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.

1. Health and Environment—25.6(3)

Under the Clean Air Act, 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, and when it is not feasible to prescribe or enforce

an emission standard, Administrator of the Environmental Pro-

tection Agency is authorized to enact a design, equipment, work

practice, or operational standard. Clean Air Act, § 112(c), as

amended, 42 U.S.C.A. § 7412(c).

2. Health and Environment—235.6(3)

Emission standards under the Clean Air Act should establish a

numerical limit requiring little of the court but its power to

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enforce compliance after an obvious violation. Clean Air Act,

§ 112(e), as amended, 42 U.S.C.A. § 7412(e).

3. Health and Environment—25.6(9)

Environmental Protection Agency regulations which govern

emergency discharges of vinyl chloride and which require compli-

ance with work practices set out by the EPA were work practice

standards, despite their designation as emissions standards, and

because the regulations were promulgated prior to the 1977

amendmerts to the Clean Air Act which authorized .he Adminis-

trator to enforce work practice standards, the regulations were

unenforceable by the District Court. Clean Air Act, § 112(e), as

amended, 42 U.S.C.A. § 7412(e).

lan Hipwell, Asst. U.S. Atty., Baton Rouge, La., for plaintiff.

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

defendant.

JOHN V. PARKER, Chief Judge.

This matter is presently before the court on defendant’s motion

to dimiss 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 discharged 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. Specifi-

cally, 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

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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 occasions, thereby violating 40

C.F.R. § 61.64(a)(3)—which again prohibits discharges which

could “have been avoided 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 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” stan-

dards. Making that deceptively simple characterization first re-

quires a journey through the labyrinths of the Clean Air Act.

Under Section 112 of the Clean Air Act the Administrator of

the Environmental Protection Agency (EPA) is authorized to

promulgate regulations setting emission standards 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 Adminis-

trator causes, or contributes to, air pollution which may reason-

ably be anticipated to resuit 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 hazardous 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 et seq.

' 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 & Health Administration. 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

Ecoiogy L.Q. 497 (1978).

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Discharging an air pollutant in violation of the applicable

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 passageway in this matrix

leads to the controversial jurisdictional bar. Under Section

307(b) of the Act:

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

tor 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 Administrator’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 paragraph (1) shall

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

ings 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 Administrator’s authority,

the enforcement provisions, and the jurisdictional limits all were

couched in terms of “emissions 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 standards.”) That language caused a split in lower

court decisions on whether work practice requirements were

permitted under the Act. Congress soon thereafter added Section

112(e) which authorized work practice standards where “it is not

feasible to prescribe or enforce an emission 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 U.S.C. § 1712(e)(1) (West Supp.1978). The Su-

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

B-5

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

sequence of events as an indication that authority to issue require-

ments—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 regula-

tions, he seemingly had no authority to enforce them—the en-

forcement provision referred only to violations 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 “[a]ny 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”; i.e. a

work practice standard equals an emissions standard for purposes

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

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

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

authority to issue only emission standards before the 1977 amend-

ments. 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 practice 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 subse-

quent to the 1977 amendments. Jd. While the Administrator

reminds us that we may not consider the sufficiency of the

regulation and argues that it is indeed an emission standard, we

note the words of Justice Rehnquist in Adamo Wrecking, “Con-

gress ... did not empower the Administrator, after the manner of

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

regulation 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

B-6

emission standard’ within the broad limits of —1e congressional

meaning of that term.” 434 U.S. at 287, 98 S.Ct. at 573.

The regulations governing emergency discharges of vinyl chlo-

ride were promulgated in October 1976, prior to the 1977 amend-

ments. 41 Fed.Reg. 46560, now codified at 40 C.F.R. § 6160 et

seq.; specifically, 40 C.F.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 camou-

flaged under the rubric of “emission standards.”

Apparently, the two regulations covering emergency discharges

of vinyl chloride have been used for little but gathering dust since

their enactment. Few cases discuss the work practice/emission

limitations dichotomy, and even fewer concern vinyl chloride

regulations.” The one reported case discovered mentions the

regulations at issue here, but that case was dismissed on other

grounds. Hooker Chemical Company v. United States Environ-

mental 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 America v. Tenneco Chemicals, No. 80-4141

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

? While virtually no jurisprudence exists on this issue, a few commen-

tators have discussed the vinyl chloride regulations. Two commentators

writing after the Adamo decision characterized the vinyl chlorice

standards as work practice standards which would have to be repromul-

gated under the 1977 amendments. Citing § 61.65 specifically, Doniger

matter of factly describes it as specifying “the use of certain equipment

and operational techniques.” Doniger, supra, at 566. (See other refer-

ences to work practice regulations for vinyl chioride at p. 567, n. 360; p.

568, n. 361; and p. 578.) Another commentator wrote that in some

situations, a quantitative limit on emissions “is not practical, either

because measurement techniques are available, or because emissions

come from many small points in a process and are most easily controlled

by 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 INSTITUTE,

Design, Equipment, Work Practice or Operational Standards: The 1977

Amendments and Adamo Wrecking Co., in AIR AND WATER POL-

LUTION CONTROL LAW: 1980 at 183 (Wetstonie, ed. 1980).

B-7

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.

*61.65(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 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 total

vinyl chloride loss during the discharge, the method used for determin-

ing 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 emergency

manual vent valve discharge, there is to be no discharge to the atmos-

phere 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 atmosphere which could not have been avoided by

taking measures to prevent the discharge. Within 10 days of any

discharge to the atmosphere from any manual vent valve, the owner or

operator of the source from which the discharge occurs shall submit to

the Administrator 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 tota! vinyl chloride loss during the discharge,

the method used for determing the vinyl chloride loss, the action that

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

future discharges. (Emphasis added)

B-8

Ethyl responds that the regulations, while phased in terms of no

discharge, indirectly require the use of certain work practices. The

regulations actually allow non-quantifiable discharges of vinyl

chloride, provided certain work practices and operational tech-

niques are observed.

[1] 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 Co. 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 Administrator 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

proposed originally as a limit on emissions of zero."

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 demolition. 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 required 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 the EPA in the preamble to the

regulations, which describe the “measures” required by the EPA

to prevent “avoidable” discharges:

A zero emission limit is being proposed for relief dis-

charges which can be prevented. In most case, such dis-

charges from reactors can be prevented by measures

including, but not limited to, properly instrumenting the

reactors to detect upset conditions, injecting chemicals to

*“Zero” emissions are possible under the Act. See S.Rep. No. 1196,

91st Cong., 2d Sess. at 20 (1970) and Senate Comm. on Public Works,

“Summary of the Provisions of Conference Agreement on the Clean Air

Amendments of 1970,” reprinted in A Legislative History of the Clean

Air Amendments of 1970, Ser. No. 93-18, 93rd Cong., 2d Sess. at 133

(1974).

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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 han-

dling upset conditions, and utilizing 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 gasholder 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 materials

containing vinyl chloride. Discharges which cannot be

avoided by taking such preventive measures, such as those

caused by natural disaster, will not be 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 provision is necessary to permit

EPA to investigate the surrounding conditions and determine

whether the discharge could have been prevented. 40

Fed.Reg. 59539.

Plainly the Administrator does not limit “emergency” to earth-

quake, 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 posture in United States v. Tenneco Chemicals, Inc.,

supra, fortifies this conclusion. The court there noted that the

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 the EPA had

advised Tenneco that the company must demonstrate that dis-

charges 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 (including

replacement of relief valve seals on a sufficiently frequent basis in

order to prevent their rupture);

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(3) proper design and operation of process and control equip-

ment; and

(4) installation and operation of all control equipment needed

to comply with the vinyl chloride standard.

Each of the “measures” to which the EPA made reference

relates to “design, equipment, work practice, or operational stan-

dard, or combination thereof,” the definition of work practice. 42

U.S.C. § 7412(c).

Ethyl argues, therefore, that the court’s determination of

whether a scurce has. violated the emergency discharge regula-

tions 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 “avoidable

discharge” is unclear. The government argues that that very

uncertainty is what renders this regulation an emissions limita-

tion. 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 actually 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 enforcement of precise and

objective emission controls.” Jorling, The Federal Law Pollution

Control, in FEDERAL ENVIRONMENT LAW 1101 (E. Dol-

gin and T. Guilbert, eds. 1974). An emission standard, according

to the Senate Report and the commentator’s opinion, had to be

one capable of being enforced without “reanalysis of technological

or other considerations;...an objective evidentiary standard

would have to be met.” Jd. at 1102. Once standards are set their

violation “should be a relatively clear evidentiary matter.” /d. at

1107.

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[2] The need for prompt enforcement of regulations which are

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

the time and study which should preface the promulgation of a

regulation—all support the wisdom behind the Congressional

intent that emission standards, when finally set, should establish a

numerical limit requiring little of the court but its power to

enforce compliance after an obvious violation. The 1977 amend-

ment setting out the procedure for promulgating work practice

operations likewise has at its base the necessity for clear, objective

regulations setting out precise requirements that must be met in

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

[3] These emergency discharge regulations do not meet those

goals of clarity and ease of enforcement. The court is aware, of

course, that it may not look into the sufficiency of a regulation

promulgated by the Administrator. If these regulations are emis-

sions 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 nevertheless do require compli-

ance with work practices set out, however vaguely, by the EPA.

The conclusion is inescapable that these regulations, despite being

designated as emission standards by the Administrator, are work

practice standards within the meaning of the Act. Compliance

with these elusive work practices renders any discharge “un-

avoidable” 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.

.

se

a

.

C-1

APPENDIX C

In the United States District Court

for the Middle District of Louisiana

Civil Action No. 83-1020

Sec. A

United States of America,

Plaintiff,

Vv.

Ethyl Corporation,

Defendant.

COMPLAINT

Plaintiff, the United States of America, through its undersigned

attorneys, by authority of the Attorney General of the United

States and at the request of the Administrator of the United

States Environmental Protection Agency, (“EPA”) alleges the

following:

NATURE OF THE ACTION

1. This is a civil action brought pursuant to Section 113(b) of

the Clean Air Act, 42 U.S.C. § 7413(b) for civil penalties and

injunctive relief to abate continuing discharges of vinyl chloride, a

hazardous air pollutant, in violation of Section 112 of the Clean

Air Act, 42 US.C. §7412.

JURISDICTION

2. This Court has jurisdiction over the subject matter of this

action pursuant to Section 113(b) of the Act, 42 U.S.C.

§ 7413(b) and pursuant to 28 U.S.C. §§ 1331, 1345 and 1355.

3. Venue is proper in this District pursuant to 42 U.S.C.

§ 7413(b) and 28 U.S.C. § 1391(b) and (c) because defendant

does business in, and the claim arose within, the Middle District

of Louisiana.

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4. Authority to bring this action is vested in the United States

Department of Justice pursuant to Section 305 of the Act, 42

U.S.C. § 7605.

5. Notice of commencement of this action has been given to

the Louisiana Department of Natural Resources pursuant to

Section 113(b) of the Act, 42 U.S.C. § 7413(b).

6. Defendant Ethyl Corporation is a corporation organized

_under the laws of the State of Virginia and doing business at

Baton Rouge, Louisiana, which is within the jurisdiction of this

Court. At all times relevant herein, defendant was engaged, and is

now engaged in the business of manufacturing vinyl chloride,

which is used in the production of plastics. Defendant now owns

and operates and at all times relevant to this Complaint did own

and operate ethylene dichloride, vinyl chloride monomer and

polyvinyl chloride facilities at Baton Rouge, Louisiana (“the

Baton Rouge Plant”), which is the subject of this action. Defen-

dant is a “person” as defined by 42 U.S.C. § 7602(e), within the

meaning of 42 U.S.C. § 7413(b).

7. Section 112 of the Act, 42 &/.S.C. § 7412, requires the

Administrator of the EPA (“the Administrator”) to publish a list

of hazardous air pollutants and to establish emission standards for

each pollutant on the list. These standards are known as the

National Emission Standards for Hazardous Air Pollutants

(“NESHAP’”).

8. Section 112(a)(1) of the Act, 42 U.S.C. § 7412(a) (1),

defines a hazardous air pollutant as “an air pollutant to which no

ambient air quality standard is applicable and which . . . causes, or

contributes to, air pollution which may reasonably be anticipated

to result in an increase in mortality or an increase in serious

irreversible, o- incapacitating reversible, illness.”

9. On December 24, 1975, pursuant to Section 112(b) of the

Act, the Administrator designated vinyl chloride a hazardous air

pollutant. 40 Fed. Reg. 59477. Vinyl chloride was designated a

hazardous air pollutant because, inter alia, it had been implicated

as the causal agent of angiosarcoma, a form of liver cancer, and

other carcinogenic and non-carcinogenic disorders in people with

occupational exposure and in animals with experimental exposure

C-3

te the substance. The emission standard for vinyl chloride was

promulgated as a final reguiation (“National Emission Standard

for Vinyl Chloride”) on October 21, 1976 (41 Fed. Reg. 46560,

now codified at 40 C.F.R. § 61.60 et seg.). The Baton Rouge

plant, owned and operated by defendant, is subject to the Na-

tional Emission Standard for Vinyl Chloride.

10. Vinyl chloride is a hydrocarbon which is a gas at ambient

temperature and atmospheric pressure, but is normally processed,

shipped and stored as a liquid under pressure in vessels, transfer

lines, polyvinyl chloride (“PVC”) reactors (or autoclaves) and

other equipment. At the Baton Rouge plant, vinyl chloride mono-

mer (“VCM”) is made and stored in vessels and then piped to

the PVC plant. At the PVC plant, VCM is stored in spheres and

then piped into PVC reactors, which operate at high temperatures

and pressures. When polymerization of VCM in a PVC reactor

reaches the desired degree of completion, (percentage conversion

of VCM to PVC) unreacted VCM is stripped from the final

product and recovered through a system of compression and

cooling before being recycled through purification equipment to

be used again. Conventional venting of VCM that routinely

eccurs as a part of the normal VCM and PVC plant process

operations is controlled by combustion in an incinerator and/or

dedicated ethylene dichloride cracking furnaces before being

emitted to the atmosphere.

The equipment at the Baton Rouge plant is protected from

rupturing due to excess pressure build-ups by safety relief valves,

rupture disks, manual vent valves or a combination of such

devices, which also protect the safety of personnel near the

equipment. Uncontrolled emissions of vinyl chloride into the

atmosphere may occur from the safety devices when excess

pressure occurs in the equipment or it is judged necessary to

release gas containing vinyl chloride to avoid the danger of fire or

explosion due to other unsafe conditions that threaten human life.

However, there are various preventive measures which include

improved process design, improved operational/ maintenance pro-

cedures, training, and/or auxiliary equipment which can either

prevent excess pressure or other unsafe conditions from occurring

in the equipment or permit timely correction of a high pressure

C-4

situation before the safety device{s) become(s) activated and

discharged to the atmosphere in an uncontrolled mariner.

11. Pursuant to 40 C.F.R. § 61.65, an owner or operator of an

ethylene dichloride, vinyl chloride and/or polyvinyl chloride plant

shall comply with the foliowing requirement:

(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 discharge...

12. Pursuant to 40 C.F.R. § 61.64(a) (3), an owner or opera-

tor of a polyvinyl chloride plant shall comply with the following

requirement:

(a) Reactor. The following requirements apply to reactors:

* * #

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

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

charge to the atmosphere from any manual vent valve on a

polyvinyl chloride reactor in vinyl chloride service. An emer-

gency manual vent valve discharge means a discharge to the

atmosphere which could not have been avoided by taking

measures to prevent the discharge. Within 10 days of any

discharge to the atmosphere from any manual vent valve, the

owner or operator of the source from which the 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 approxi-

mate 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.

13. Section 112(c)(1)(B) of the Act, 42 U.S.C.

§ 7412(c)(1)(B), provides that no air pollutant to which an

emission standard applies may be emitted from any stationary

source in violation of the standard.

ee

: en, aD

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14. The Baton Rouge plant is a “stationary source” as defined

by 42 U.S.C. § 7412(a) (3), within the meaning of § 7412(c).

15. Section 112(c)(1)(B)(ii) of the Act, 42 U.S.C.

§ 7412(c)(1)(B) (ii), authorizes the Administrator to grant

waivers of compliance with the emission standard for up to two

years beyond the October 21, 1976 effective date for the purpose

of installing necessary controls. Defendant Ethyl Corporation

sought and received a waiver of compliance with the provisions of

40 C.F.R. § 61.64(a)(3) for manual vent valve discharges from

PVC reactors at its polyvinyl chloride facility until July 1, 1978.

Defendant never received a waiver of compliance from the Octo-

ber 21, 1976 date to comply with 40 C.F.R. § 61.65(a) for relief

valve discharges.

16. Since October 21, 1976, Ethyl Corporation has dis-

charged 168,622.7 pounds of vinyl chloride to the atmosphere at

its Baton Rouge plant from relief valves on equipment in vinyl

chloride service at least on eighty-one (81) occasions. None of

these discharges was an “emergency relief discharge” as defined

by 40 C.F.R. 61.65(a). The discharges occurred on the foilowing

dates:

(1) On or about March 18, 1977, defendant discharged ap-

proximately 8,200 pounds of vinyl chloride from the relief valve

on a PVC reactor #A-11;

(2) On or about April 1, 1977, defendant discharged approxi-

mately 1,000 pounds of vinyl chloride from the relief valve on

storage tank #D-123A at the PVC plant;

(3) On or about April 6, 1977, defendant discharged approxi-

mately 350 pounds of vinyl chloride from the relief valve on

degassing vessel #D-112B;

(4) On or about May 1, 1977, defendant discharged approxi-

mately 350 pounds of vinyl chloride from the relief valve on

degassing vessel #D-112B;

(5) On or about June 16, 1977, defendant had two discharges

totaling approximately 820 pounds of vinyl chloride, one from the

C-6

relief valve on reactor #A-15 and one from a relief valve on the

post vacuum system for suspension reactors;

(6) On or about June 29, 1977, defendant discharged approxi-

mately 60 pounds of vinyl chloride from the relief valve on

degasser #D-112B;

(7) On or about July 22, 1977, defendant discharged approxi-

mately 2,160 pounds of vinyl chloride from the relief valve on

PVC reactor #A-11;

(8) On or about July 31, 1977, defendant discharged approxi-

mately 78 pounds of vinyl chloride from the relief valve on

vacuum knockout drum #D-148B at the PVC plant;

(9) On or about August 2, 1977, defendant discharged approx-

imately 150 pounds of vinyl chloride from the relief valve on

VCM storage tank #D-123A at the PVC plant;

(10) On or about August 15, 1977, defendant discharged

approximately 4800 pounds of vinyl chloride from the relief valve

on reactor #B-20;

(11) On or about October 14, 1977, defendant discharged

approximately 60 pounds of vinyl chloride from the relief valve on

degassing vessel #D-112C;

(12) On or about October 23, 1977, defendant discharged

approximately 59 pounds of vinyl chloride from the relief valve on

vacuum knockout drum #D-148B at the PVC plant;

(13) On or about November 2, 1977, defendant discharged

approximately 292 pounds of vinyl chloride from the relief valve

on degassing vessel #D-612;

(14) On or about November 11, 1977, defendant discharged

approximately 99 pounds of vinyl chloride from the relief valve on

reactor #A-17;

(15) On or about November 20, 1977, defendant discharged

approximately 328.7 pounds of vinyl chloride from the relief valve

on degassing vessel #D-112C and the relief valve on reactor #A-

17;

Na nt A ee lly a Las WOR aah Be ota

ME et ee Bde nahn © Ot me

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(16) On or about November 28, 1977, defendant discharged

approximately 1,657 pounds of vinyl chloride from the relief valve

on degassing vessel #D-112B;

(17) On or about December 1, 1977, defendant discharged

approximately 828 pounds of vinyl chloride from the relief valve

on degasser #D-112C:

(18) On or about December 5, 1977, defendant discharged

approximately 120 pounds of vinyl chloride from the relief valve

on degassing vessel #D-112C;

(19) On or about December 14, 1977, defendant discharged

approximately 2,127 pounds of vinyl chloride from the relief valve

on reactor #B-2;

(20) On or about December 19, 1977, defendant discharged

approximately 389 pounds of vinyl chloride from the relief valve

on reactor #A-19;

(21) On or about December 28, 1977, defendant discharged

approximately 6,409 pounds of vinyl chloride from the relief valve

on reactor #A-17;

(22) On or about January 5, 1978, defendant discharged

approximately 856 pounds of vinyl chloride from the relief valve

on degassing vessel #D-112C;

(23) On or about January 10, | °8, defendant discharged

approximately 3,982 pounds of vinyl chloride from the relief valve

on reactor #A-13;

(24) On or about January 11, 1978, defendar: discharged

approximately 993 pounds of vinyl chloride from the relief valve

on reactor #A-13;

(25) On or about January 13, 1978, defendant discharged

approximately 331 pounds of vinyl chloride from the relief valve

on reactor #A-13;

(26) On or about January 19, 1978, defendant discharged

approximately 5,800 pounds of sis chloride from the relief valve

on reactor #B-12;

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(27) On or about January 20, 1978, defendant discharged

approximately 39 pounds of vinyl chloride from the relief valve on

post vacuum system from reactor A-17, i.e. the post vacuum

system for suspension reactors;

(28) On or about February 9, 1978, defendant discharged

approximately 450 pounds of vinyl chloride from the relief valve

on degassing vessel #D-612;

(29) On or about February 12, 1978, defendant discharged

approximately 585 pounds of vinyl chloride from the relief valve

on the post vacuum system for suspension reactors;

(30) On or about February 13, 1978, defendant discharged

approximately 331 pounds of vinyl chloride from the relief valve

on reactor #B-16;

(31) On or about February 14, 1978, defendant discharged

approximately 321 pounds of vinyi chloride from the relief valve

on reactor #A-15;

(32) On or about February 16, 1978, defendant discharged

approximately 1,954 pounds of vinyl chloride from the relief valve

on reactor #A-11;

(33) On or about February 28, 1978, defendant had two

discharges totaling approximately 3,888 pounds of vinyl chloride

from the relief valve on reactor #B-18 and the relief valve on

degassing vessel #D-612;

(34) On or about March 13, 1978, defendant discharged

approximately 585 pounds of vinyl chloride from the relief valve

on the post vacuum system for the suspension reactors;

(35) On or about March 17, 1978, defendant discharged

approximately 1,990 pounds of vinyl chloride from the relief valve

on reactor #A-13;

(36) On or about March 30, 1978, defendant discharged

approximately 59 pounds of vinyl chloride from the relief valve on

vacuum knockout drum #D-148B at the PVC plant;

(37) On or about April 19, 1978, defendant discharged ap-

proximately 73 pounds of vinyl chloride from the relief valve on

degassing vessel #D-612;

C-9

(38) On or about April 24, 1978, defendant discharged ap-

proximately 3,840 pounds of vinyl chloride from the relief valve

on reactor #B-16;

(39) On or about May 2, 1978, defendant discharged approxi-

mately 9,551 pounds of vinyl chloride from the relief valve on

reactor #A-15;

(40) On or about May 16, 1978, defendant discharged approx-

imately 146 pounds of vinyl chloride from the relief valve on

degassing vessel #D-612;

(41) On or about June 7, 1978, defendant discharged approxi-

mately 159 pounds of vinyl chloride from the relief valve on

reactor #B-10;

(42) On or about August 3, 1978, defendant discharged ap-

proximately 600 pounds of vinyl chloride from the relief valve on

the post vacuum system for suspension reactors;

(43) On or about August 16, 1978, defendant discharged

approximately 600 pounds of vinyl chloride from the relief valve

on the post vacuum system for suspension reactors;

(44) On or about September 22, 1978, defendant discharged

approximately 53 pounds of vinyl chloride from the relief valve on

reactor #B-14;

(45) On or about September 24, 1978, defendant discharged

approximately 146 pounds of viny! chloride from the relief valve

on the post vacuum system for suspension reactors and fro:n the

relief valve on reactor #B-14;

(46) On or about September 25, 1978, defendant discharged

approximately 300 pounds of vinyl chloride from the relief valve

on the post vacuum system for suspension reactors;

(47) On or about October 6, 1978, defendant discharged

approximately 640 pounds of vinyl chloride from the relief valve

on reactor #A-15;

(48) On or about November 7, 1978, defendant discharged

approximately® 11,130 pounds of vinyl chloride from the relief

valve on reactor #A-17;

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(49) On or about November 13, 1978, defendant discharged

approximately 6,240 pounds of vinyl! chloride from the relief valve

on reactor #B-18;

(50) On or about December 9, 1978, defendant discharged

approximately 1200 pounds of vinyl chloride from the relief valve

on the post vacuum system for suspension reactors;

(51) On or about January 11, 1979, defendant discharged

approximately 320 pounds of vinyl chloride from the relief valve

on reactor #B-16;

(52) On or about January 15, 1979, defendant discharged

approximately 1,305 pounds of vinyl chloride from the relief valve

on degassing vessel #D-112B;

(53) On or about January 23, 1979, defendant discharged

approximately 2,560 pounds of vinyl chloride from the relief valve

on reactor #B-16;

(54) On or about January 29, 1979, defendant discharged

approximately 20 pounds of vinyl chloride from the relief valve on

the post vacuum system for suspension reactors;

(55) On or about February 7, 1979, defendant discharged

approximately 20 pounds of vinyl chloride from the relief valve on

the post vacuum system for suspension reactors;

(56) On or about February 10, 1979, defendant discharged

approximately 530 pounds of vinyl chloride from the relief valve

on reactor #B-12;

(57) On or about March 25, 1979, defendant discharged

approximately 200 pounds of vinyl chloride from the relief valve

on post vacuum system for suspension reactors;

(58) On or about April 12, 1979, defendant discharged ap-

proximately 9,540 pounds of vinyl chloride from the relief valve

on reactor #A-19;

(59) On or about April 29, 1979, defendant discharged ap-

proximately 53 pounds of vinyl chloride from the relief valve on

reactor #B-8;

eee i ere eS

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(60) On or about August 10, 1979, defendant discharged

approximately 1,060 pounds of vinyl chloride from the relief valve

on reactor #A-13;

(61) On or about September 7, 1979, defendant discharged

approximately 3,240 pounds of vinyl chloride from the relief valve

on reactor #A-17;

(62) On or about September 17, 1979, defendant discharged

approximately 3,000 pounds of vinyl chloride from the relief valve

on the post vacuum system for suspension reactors;

(63) On or about October 11, 1979, defendant discharged

approximately 363 pounds of vinyl chloride from the relief valve

on reactor #B-10;

(64) On or about November 13, 1979, defendant discharged

approximately 575 pounds of vinyl chloride from the relief valve

on reactor A-11;

(65) On or about November 15, 1979, defendant discharged

approximately 8,150 pounds of viny! chloride from the relief valve

on reactor A-11;

(66) On or about November 28, 1979, defendant discharged

approximately 340 pounds of vinyl chloride from the relief valve

on degasser #D-162;

(67) On or about March 6, 1980, defendant discharged ap-

proximately 315 pounds of vinyl chloride from the relief valve on

reactor #B-16;

(68) On or about April 12, 1980, defendant discharged ap-

proximately 10,870 pounds of vinyl chloride from the relief valve

on reactor #A-15;

(69) On or about April 16, 1980, defendant discharged ap-

proximately 2,400 pounds of vinyl chloride from the relief valve

on the post vacuum system for suspension reactors;

(70) On or about April 20, 1980, defendant discharged ap-

proximately 8,300 pounds of vinyl chloride from the relief valve

on reactor #A-15;

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' (71) On or about July 5, 1980, defendant discharged approxi-

mately 555 pounds of vinyl chloride from the relief valve on

reactor #A-7;

(72) On or about September 17, 1980, defendant discharged

approximately 13,200 pounds of vinyl chloride from the relief

valve on reactor #B-20;

(73) On or about October 28, 1980, defendant discharged

approximately 1,140 pounds of vinyl chloride from the relief valve

on reactor #A-7;

(74) On or about February 13, 1981, defendant discharged

approximately 1,575 pounds of vinyl chloride from the relief valve

on reactor #A-19;

(75) On or about March 17, 1981, defendant discharged

approximately 51 pounds of vinyl chloride from the relief valve on

degasser #D-112B;

(76) On or about April 7, 1981, defendant discharged approxi-

mately 105 pounds of vinyl chloride from the relief valve on

reactor #A-9;

(77) On or about April 10, 1981, defendant discharged ap-

proximately 3,640 pounds of vinyl chloride from the relief valves

on reactors A-9 and A-17;

(78) On or about April 15, 1981, defendant discharged ap-

proximately 20 pounds of vinyl chloride from the relief valve on

the post vacuum line for suspension reactors;

(79) On or about May 20, 1981, defendant discharged approx-

imately 6,300 pounds of vinyl chloride from the relief valve on

reactor #B-18;

(80) On or about July 8, 1981, defendant discharged approxi-

mately 20 pounds of vinyl chloride from the relief valve on the

post vacuum sytem for suspension reactors; and

(81) On or about April 30, 1982, defendant discharged ap-

proximately 1,070 pounds of vinyl chloride from the relief valve

on reactor #A-13.

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17. Since expiration of the waivers of compliance with 40

C.F.R. 61.64(a) (3), defendant manually vented gas containing

14,596 pounds of vinyl chloride to the atmosphere from man-

ual/automatic emergency vent valves on polyvinyl chloride reac-

tors in vinyl chloride service in violation of 40 C.F.R. 61.64(a) (3)

on seventeen (17) occasions. These valves, also called “‘emer-

gency automatic vent valves,” are valves which are manually set

to vent at a certain pressure. Unlike relief valves, the pressure

settings on these valves can be manually changed at will. The

discharges from the manual/automatic vent valves to the atmos-

phere occurred on the following dates:

(1) On or about Juiy 14, 1978, defendant discharged approxi-

mately 52 pounds of vinyl chloride from reactor #B-18;

(2) On or about August 3, 1978, defendant discharged approx-

imately 280 pounds of vinyl chloride from reactor #A-11;

(3) On or about August 10, 1978, defendant discharged ap-

proximately 28 pounds of vinyl chloride from reactor #B-4;

(4) On or about September 2, 1978, defendant discharged

approximately 80 pounds of vinyl chloride from reactors #A-17

and A-11;

(5S) On or about September 24, 1978, defendant discharged

approximately 60 pounds of vinyl chloride from reactor #B-12;

(6) On or about October 18, 1978, defendant discharged

approximately 25 pounds of vinyl chloride from reactor #B-8;

(7) On or about October 19, 1978, defendant discharged

approximately 23 pounds of vinyl chloride from reactor #B-8;

(8) On or about October 28, 1978, defendant discharged

approximately 20 pounds of vinyl chloride from reactor #A-5;

(9) On or about November 7, 1978, defendant discharged

approximately 260 pounds of vinyl chloride from reactor #B-18;

(10) On or about December 9, 1978 defendant discharged

approximately 1,590 pounds of vinyl chloride from reactor #A-

17;

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(11) On or about February 13, 1979, defendant discharged

approximately 40 pounds of vinyl chloride from reactor #B-16;

(12) On or about April 10, 1979, defendant discharged ap-

proximately 60 pounds of vinyl chloride from reactor #A-9;

(13) On or about April 20, 1979, defendant discharged ap-

proximately 40 pounds of viny! chloride from reactor #A-5;

(14) On or about May 12, 1980, defendant discharged approx-

imately 410 pounds of vinyl chloride from reactor #A-11;

(15) On or about July 24, 1980, defendant discharged approxi-

mately 72 pounds of vinyl chloride from reactor #A-1;

(16) On or about October 2, 1981, defendant discharged

approximately 36 pounds of vinyl chloride from reactor #A-5;

and

(17) On or about January 11, 1982, defendant ischarged

approximately 11,520 pounds of vinyl chloride from reactors

##A-1, A-3 and A-11.

18. Each of the eighty-one (81) discharges from the relief

valves, and the seventeen (17) discharges from the man-

ual/automatic vent valves, constitutes a violation by defendant of

40 C.F.R. § 61.64(a)(3) or 40 C.F.R. § 61.65(a) and of 42

U.S.C. § 7412(c).

19. Section 113(b) of the Act, 42 U.S.C. § 7413(b) provides

that the Administrator shall, in the case of a 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 injunctive

relief and to assess and recover a civil penalty of up to $25,000 per

day whenever such person violates Section 112(c) of the Act, 42

U.S.C. §7412(c).

20. Unless restrained, defendant will continue to violate 40

C.F.R. §§ 61.64(a) (3), 61.65(a), and the Act, which will result

in irreparable harm: to the public health and welfare.

WHEREFORE, plaintiff, the United States of America re-

spectfully prays this Court for:

C-15

(a) A permanent injunction, 12» -..»1ng and preventing defen-

dant Ethyl Corporation, from violating the NESHAP for vinyl

chloride, including 40 C.F.R. §§ 61.64(a) (3), 61.65(a), and the

Act, at its Baton Rouge plant and requiring defendant to take all

necessary remedial measures as expeditiously as possible to pre-

vent future violations;

(b) A permanent injunction requiring defendant to develop,

prepare, and submit for EPA approval a continuing maintenance

and operation program for its Baton Rouge plant to prevent future

discharges of vinyl chloride in violation of the NESHAP for vinyl

chloride, including 40 C.F.R. §§ 61.64(a) (3), 61.65(a), and the

Act, which shall include but not be limited to the purchase of any

necessary monitoring and/or containment equipment to prevent

discharges of vinyl chloride, the development of a preventive

inspection and maintenance plan for equipment in vinyl chloride

service, a study of premature rupture disk failures and develop-

ment of a program to eliminate such failures, an improved

program for investigating and preventing relief valve discharges,

the purchase of equipment and institution of procedures to ensure

the ability to “shortstop,” “kill” or control runaway reactions, and

the issuance of written, publicized procedures for operators to

prevent or ameliorate relief valve discharges and the establish-

ment of frequent operator training sessions;

(c) A permanent injunction requiring defendant to implement

the plan described in (b) above as expeditiously as possible upon

EPA approval;

(d) An order imposing upor defendant civil penalties in the

amount of $25,000 for each day within five years prior to the date

of filing of the instant civil action on which defendant failed to

meet the requirements of 40 C.F.R. §§ 61.64(a) (3) and/or 61.65

(a) in violation of 42 U.S.C. § 7412(c);

(e) An order awarding plaintiff the costs of this action; and

C-16

(f) Such other and further relief as this Court may deem

appropriate.

OF COUNSEL:

Respectfully submitted,

CAROL E. DINKINS

Assistant Attorney General

Land and Natural Resources Division

LLOYD S. GUERCI

Environmental Enforcement Section

Land and Natural Resources Division

U.S. Department of Justice

Washington, D.C. 20530

(202) 633-5403

STANFORD O. BARDWELL, JR.

United States Attorney

Baton Rouge, Louisiana

By: IAN F. HIPWELL

Assistant United States Attorney

Patrick Hudson, 6 ORC

U.S. Environmental Protection Agency

Office of Regional Counsel

First International Bldg.

1201 Elm St.

Dallas, Texas 75270

Please Serve:

Ethyl Corporation through its

agent for service of process

C.T. Corporation Systems

1300 Hibernia Bldg.

New Orleans, La. 70112

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Notice of Right to Consent to Disposition of a

Civil Case by a United States Magistrate

In accordance with the provisions of 28 U.S.C. 636 (c), you are

hereby notified that upon the consent of all the parties in a civil

case, a United States Magistrate of this district court may

conduct any or all proceedings, including trial of the case and

entry of a final judgment. Copies of appropriate consent forms are

available from the Clerk of the court.

You should be aware that your decision to consent, or not to

consent, to the disposition of your case before a United States

Magistrate is entirely voluntary and should be communicated to

the Clerk of the district court. Only if all the parties to the case

consent to the reference to a Magistrate will either the judge or

magistrate to whom the case has been assigned be informed of

your decision. Neither a district judge nor a magistrate will

attempt to persuade or induce any party to the reference of this

case to a Magistrate.

ee

D-1

APPENDIX D

In the United States District Court

for the Middle District of Louisiana

Civil Action No. 83-0120

Section A

United States of America,

Plaintiff,

Vv.

Ethyl Corporation,

Defendant.

Motion to Dismiss for Failure to

State a Claim Upon Which Relief Can be Granted

Ethyl Corporation, defendant herein, respectfully moves the

Court to dismiss the complaint herein pursuant to Rule 12(b) (6)

of the Federal Rules of Civil Procedure. In support of its motion,

Ethyl would show the Court the following:

1. The complaint of the government shows on its face that it

seeks to enforce certain design, equipment, work practice or

operational provisions of the National Emission Standard for

Vinyl Chloride (‘‘Emission Standards”), 40 C.F.R.

§ 61.64(a) (3) and § 61.65(a).

2. The foregoing Emission Standard was promulgated by the

Administrator of the United States Environmental Protection

Agency effective October 21, 1976.

3. The Emission Standard as promulgated, incorporates nu-

merous design, equipment, work practice, and operational

standards.

4. At the time the Emission Standard was promulgated, the

Administrator was without authority to promulgate emission

standards which included design, equipment, work practice and

operational standards.

5. The design, equipment, work practice and operational

portions of the Emission Standard, having been issued in the

D-2

absence of any statutory authority, are unenforceable as a matter

of law.

Respectfully submitted,

F. WALTER CONRAD, JR.

MARTIN L. McGREGOR

3000 One Shell Piaza

Houston, Texas 77002

(713) 229-1234

Attorneys for Defendant

oo

2 I Me ee Oe -e

D-3

Certificate of Service

I, Martin L. McGregor, do hereby cerfify that on this the 31st

day of March, 1983, a copy of the foregoing Motion to Dismiss

For Failure to State A Claim Upon Which Relief Can Be

Granted as well as a copy of a proposed Order were served upon

the following by placing copies of the same in the United States

mail, postage prepaid, certified, return receipt requested:

Carol E. Dinkins

Assistant Attorney General

Land and Natural Resources Division

U.S. Department of Justice

Washington, D.C. 20530

Lloyd S. Guerci

Environmental Enforcement Section

Land and Natural Resources Division

U.S. Department of Justice

Washington, D.C. 20530

Stanford O. Bardwell, Jr.

United States Attorney

352 Florida Street

Baton Rouge, Louisiana 70801

Ian F. Hipwell

Assistant United States Attorney

352 Florida Street

Baton Rouge, Louisiana 70801

Patrick Hudson, 6 ORC

U.S. Environmental Protection Agency

Office of Regional Counsel ;

First International Bldg.

1201 Elm Street

Dallas, Texas 75270

MARTIN L. McGREGOR

Martin L. McGregor

D-4

In the United States District Court

For the Middle District of Louisiana

Civil Action No. 83-0120

Section A

United States of America,

Plaintiff,

Vv.

Ethyl Corporation,

Defendant.

Proposed Order

Pending before the Court is Defendant’s Motion to Dismiss for

Failure to State A Claim Upon Which Relief Can Be Grarted.

The Court having considered the motion and the memorandum in

support and opposition thereto, the Court is of the opinion that

the motion must be GRANTED. It is, therefore, ORDERED

that Defendant’s Motion to Dismiss for Failure to State A Claim

Upon Which Relief Can Be Granted is hereby GRANTED, and

Plaintiff's claims under the Clean Air Act of the United States

are hereby DISMISSED with prejudice.

DONE AT BATON ROUGE, LOUISIANA THIS —

DAY OF , 1983.

UNITED STATES DISTRICT JUDGE

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APPENDIX E

United States Code, Title 42:

§ 7412. National emission standards for hazardous air

pollutants

(c) Prohibited acts; exemption

(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 Administrator’s judg-

ment, will emit an air pollutant to which such standard

applies unless the Administrator finds that such source if

properly operated will not cause emissions in violation of

such standard, and

(B) no air pollutant to which such standard applies

may be emitted from any stationary source in violation 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 permit-

ting such source a period of up to two years after the

effective date of a standard to comply with the stan-

dard, 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 protected 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 operation of such source is

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required for reasons of national security. An exemption under

this paragraph may be extended 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.

(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 subsec-

tion 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, ¢. 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.)

Historical Note

Codification. Section was formerly classified to section

1857¢-7 of this title.

1978 Amendment. Subsec. (e). Pub.L. 95-623 added par.

(5).

1977 Amendment. Subsec «) (1). Pub.L. 95-95, § 401(c),

substituted “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 revers-

ible, illness” for “may cause, Or contribute to, an inerease iti

mortality or an increase in serious irreversible, or ineapacitat-

ing reversible, illness”.

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Subsee. (d)(1). Pub.L. 95-95, § 109(d)(2), struck out

“(except with respect to stationary sources owned or operated

by the United States)” following “implement and enforee such

standards”.

Subsee. (e). Pub.L. 95-95, § 110, added subsee. (e).

Effective Date of 1977 Amendment. Amendment by Pub.L.

95-95 effective Aug. 7, 1977, except as otherwise expressly

provided, see section 406(d) of Pub.L. 95-95, set out as an

Effective Date of 1977 Amendment note under section 7401 of

this title.

United States Code, Title 42:

§ 7413. Federal enforcement procedures

(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 as-

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

having been notified by the Administrator under subsec-

tion (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

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

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

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conversion), section 7624 of this title (relating to eost 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 stationary

source in any area V ith respect to which a finding under

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

The Administrator may commence a civil action for recovery of

any noneompliance penalty under section 7420 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 prought in the district court of

the United States for the district in which the violation oc-

curred or in which the defendant resides or has his principal

place of business, and such court shall have jurisdiction to

restrain such violation, to require compliance, to assess such

eivil penalty and to collect any noncompliance penalty (and

nonpayment penalty) owed under section 7420 of this title. In

determining the amount of any civil penalty to be assessed

under this subsection, the eourts shall take into consideration

(in addition to other factors) the size of the business, the

economic impact of the penalty on the business, and the

seriousness of the violation. Notice of the commencement of

such action shall be given to the appropriate State air pollution

eontrol agency. In the case of any action brought by the

Administrator under this subsection, the eourt may award

eosts 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.

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ich SCA Nth kT EN ERED AEM PO

Seaeasrtethyee NS ee

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United States Code, Title 42:

§ 7607. Administrative proceedings and judicial review

(b) Judicial review

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

promulgating any national primary or secondary ambient air

quality standard, any emission standard or requirement 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

to 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 section 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

action in approving or promulgating any implementation 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 1857¢c-10(¢) (2) (A), (B), or (C) of

this title (as in effect be ore August 7, 1977) or under regula-

tions thereunder, or any other final action of the Administrator

under this chapter (including any denial or disapproval by the

Administrator under subchapter I of this chapter) which is

locally or regionally applicable may be filed only in the United

States Court of Appeals for the appropriate circuit. Notwith-

standing the preceding sentence a petition for review of any

action referred to in such sentence may be filed only in the

United States Court of Appeals for the District of Columbia if

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such action is based on a determination 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 subsection 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 petition for review under this subsection

shall be filed within sixty days after such grounds arise.

Code of Federal Regulations, Title 40:

§ 61.64 Emission standard for polyvinyl chloride plants.

An owner or operator of a polyvinyl chloride plant shall

comply with the requirements of this section and § 61.65.

(a) Reactor. The following requirements apply to

reactors:

~ * +

(3) Manual vent valve discharge: Eveept for an

emergency 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 atmosphere which could not

have been avoided by taking measures to prevent the

discharge. Within 10 days of any discharge to the

atmosphere from any manual vent valve, the owner or

operator of the source from which the discharge

oceurs 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 total vinyl chloride loss

during the discharge, the method used for determin-

ing the vinyl chloride loss, the action that was taken

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to prevent the discharge, and measures adopted to

prevent future discharges.

Code of Federal Regulations, Title 40:

§ 61.65 Emission standard for ethylene dichloride, vinyl chlo-

ride and polyvinyl chloride plants.

An owner or operator of an ethylene dichloride, vinyl chlo-

ride, 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 infor-

mation 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.