# Petition for Writ of Certiorari — Firestone Tire & Rubber Co. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0685%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 474 U.S. 1070 ## Text 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 NE EE a ee eer ae ee Ne eee eS eke A ace detbesvendeaees EE GEE SRO yc ccc cae ccnce este aeenecses i wt Sak Chg ice es sbs eae ncnesdeanne ws ee GGL c es ane eee ba rasceusecsas 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 SE SCTE GN Err yrey rere eee Tee ee KET 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 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). A-10 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 B-2 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 B-3 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). B-4 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). B-9 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); B-10 (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. B-11 [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. C-2 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 C-5 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 C-7 (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; C-8 (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; C-10 (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 C-11 (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; C-12 ' (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. C-13 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; C-14 (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 C-17 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 awake. Sab we s Pe ee Sate Daur bs Stil need entra hae 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 E-2 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”. E-3 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 E-4 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. eee ich SCA Nth kT EN ERED AEM PO Seaeasrtethyee NS ee E-5 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 K-6 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 E-7 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0685%3A1. Public record. Not legal advice.