Document MM528gKoLb2BYORbDKjBN6ew7

. ALL* jCIIOMt n, HCCKMAN Ch^huCB m mCCHAn nilljAM n 900HSani, , ^OiEftT m ti(rmin MALCOLM 0. MACAFTWljP 'NAY N V 6L>C* maatim w aeics^'Ci JOHN 4. CL0*0 ZaFOLC c. HA*i3 MlCHACL f MOUflONt ukn*v s SOLOMON JOHN S. QuRECA l H*tST1N| A, MCAOHKM bhiblit . ^ujimoto FCTt* L * lA c*uz LAWNC HALF^tN ocvoaam snub t*inkc* C OQUOl>3 JAFFCTT I0WAFO L AOFWKH *M*tL> A, MlLLAM flusscu. h, ro* ..cs m, *veiN T1MOTHV IrtOWN ilcnc fimqcl mcll Law OFFICES Keller and Heckman 11SO 17TM STREET, N. W. SUITE lOOO WASHINGTON, D. C. 20036 (302) -437-1100 July 7, 1983 Please circulate: G. Disch D. Carter CO. Langford B. Stevens M. Fields ^ L. Kelm D. Smalley F. Woolfrey 0. Abell D. Hunter J. Jungman R. Marshall j. Merwin C. Tabata ^ /_ -_ To: SPI Vinyl Institute SPI Vinyl Institute Manufacturing Practices Committee SPI Vinyl Institute Lawyers Committee Please return to 6. Re: Validity of EPA Vinyl Chloride Standard Ladies and Gentlemen: On July 1, 1983, United States District Court Judge John V. Parker dismissed an action brought by the Environmental Protection Agency (EPA) against Ethyl Corporation. The com plaint alleged that Ethyl's relief valve discharges violated the vinyl chloride standard. Judge Parker held that the relief valve provisions were "work practice" requirements that EPA lacked authority to promulgate in 1976. In the Court's words, "Since they are work practice regulations promulgated prior to the 1977 amendments, they are unenforceable by this court." A copy of the decision is enclosed. Prior to the 1977 amendments to the Clean Air Act, EPA's authority to impose standards was couched in terms of "emission standards." The 1977 amendments expanded EPA's authority to provide for work practice standards. In Adamo Wrecking Company v. United States, 334 U.S. 275 (1978), which dealt with EPA's asbestos standard, the Supreme Court held that the Agency did not have authority to issue work practice standards prior to the 1977 amendments. The vinyl chloride standard prohibits relief valve and manual vent valve discharges which can be avoided by taking "measures" to prevent them. The government argued that these provisions "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." Opinion at 8. TEN 5015 SPI Mailing July 7, 1983 Page 2 Keller a^td Heckman Judge Parker notes that: "If these regulations are emission standards, they must be enforced no matter how poorly drafted." But, in finding that the relief valve provisions are work practices, the court stated: It is true that these measures are not set out with specificity as required [for work practices] under the 1977 amendments, but they nevertheless do require compliance with work practices set out however vaguely by the EPA. The conclusion is unescapable 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 "unavoidable" and thus non-violative of the regulations. Since they are work practice regulations prom ulgated prior to the 1977 amendments, they are unenforceable by this court." The Manufacturing Practices Committee will be meeting on August 4, 1983 followed by a meeting of the Lawyers Committee on August 5. The impact of this decision will be a topic of discussion at those meetings. We look forward to seeing you then. In the interim, if you have any comments or questions, please feel free to contact us. Cordially yours Enclosure TEN 5016 UNITED STATES DISTRICT COURT MINUTE ENTRY: JULY 1, 1983 PARKER, C.J. .MIDDLE DISTRICT OR LOUISIANA UNITED STATES GT AMERICA VERSUS ETHYL CORPORATION ******** CIVIL ACTION NO. 33-0120-A This matter is presently before the court on defendant's motion'to dismiss for failure to state a claim upon which relief can be granted. Each side has urged its position in .oral argument. and has suhroirted additional briefs on, issues "raised in argument.After carefully .considering all the arguments' 'and conducting its own research, the court con cludes 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 sec. .'Specifically, the complaint alleges that Ethyl discharged at least 3.68.622.7 pounds of vinyl chloride to the atmosphere from relief valves cn equipment in vinyl chloride service on at least 81 separate occasions --all in violation of 40 C.7.R. .`61.65 Cal . That regulation provides Except for an emergency relief discharge, there is to be no discharge to the atmosphere from any re lief valve cn any equipment in vinyl chloride service. -n. /V L.-t-'U' TEN 5017 2- An emergency relief discharge means a dis charge which could not have been avoided by taking measures to prevent the discharge. In addition, Ethyl allegedly manually vented gas con- tainir.c at least 14,596 ocunds of vinyl chloride from valves on polyvinyl chloride reactors on 1" separate occasions, thereby violating 40 C.J.E. 61.64(a) (3) -- which again prohibits discharges which could have been avoided by taking "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 required that Ethyl development'' and implement 'V plan to prevent future discharges of yiiiy.1 chloride.,- y_The 'government also seeks a civil penalty of $25/000 for'*each day'-that Ethyl violated the regulations at issue. . - u,;. - . . ~ - - The enforceability of these regulations depends, upon their characterization as ."emission standards" or "work practice" standards. .Making' that deceptively simple charac terization first requires a journey through the labyrinths of the'Clean' Air Act' v\ ' Under Section dl2 of the Clean Air Act the Administrator of the Environmental Protection Agency CSPA) is authorized to promulgate regulations setting emission standards for hazardous air pollutants. 42 D.S.C. 7412. A. "hazardous air .-2- TEN 5018 -3- pollutant presently is defined as one "to which no ambient air quality standard is applicable and which in the judgment of the Administrator causes/ or contributes to, air pollution which may reasonably be anticipated to result in an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness." 42 U.S.C. 7412(1). The Administrator designated .vinyl chloride a hazardous air pollutant in December/ 1975. 40 Red. Reg. 59477. In October, 1976, he promulgated 'the emissions standards for 'vinyl chloride. . .41 led. Reg. 46560, now codified at 40 C.F.R, 61.6 0 et sea t - lT; For a discussion'of vinyl chloride,'its uses in industry and its effects upon those who'are exposed to it," seee.q., Society of the Plastics Industry, Inc. v 'Occupational Safety's Health Administration,*509 R.2d 1301 (2d Cir. 1975); Doniger, federal Regulation of Viny1 Chloride:__A Short Course in the Law and Roiicv of Toxic Substances Control, 7 Ecology L. Q. 497..41973) Discharging an air pollutant in violation of the applicable emission standard is prohibited under Section 112(c)(1)(3) of the Clean Air Act. -:*42 D.S.C. 7412(c) (1) (3). . That violation subjects the violator to civil penalties and an injunction under 42 U.S.C. 57413(b)(3). And the last passageway in this matrix leads to the controversial jurisdictional bar. Under Section 307(b) of the Act: . -3- TEN 5019 4- (b) ai A petition for reyiew of action of the Administrator in promulgating any . . . emission standard or requirement under Section 7412 . . , may be filed only in the United States Court of Appeals promulgating any implementation plan under section 7412 Cc) ... which is locally -or regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit. .,'H: (2) Action of the Administrator with respect to which review could have been obtained under paragraph "CL)- shall not be subject tc judicial je- view in civil ox criminal proceedings .fox enforcem ."42 U.S.C. J7S06. ' was added in 1977-.technical, amendments, pub. L. No,1-2.5*0.20, limits all were"couched-in terms of "emissions standards." (See e. d. , SH2 Lb) Cl) C3) ,. as enacted in 1970, Pub. L, No. 21-604 , 84 S tat ."167 6 .SJ12 Cb) CL) C3) C19701 which authorized', requirements were permitted under the.Act. Congress scon thereafter added Section JJL2Cel which authorized work practice standards where "it is not ^feasible to prescribe or enforce an emission, standard." .--42 U.S.C, 74l2Cel Cll fy'est Supp, C19-7-8L This standard is set out in terms of "a design, equipment, TEN 5020 rather than in terms or limiting emissions. 4 2 U.S.C. 1712(e)(1) (West Supp. 1978). The Supreme Court, in Adamo Wrecking Co. y. United States, 434 U.S. 275, 93 S.Ct. 566, 54 L.Zd.2d 533 (1973) interpreted phis sequence ox events as an indication that authority to issue requirements -- or work practice standards -- did net exist prior to the 1977 amendments. 434 U.S. at 283-84, 93 S.Ct. at 572. Curiously, however, while the 1977 amendments cave the Administrator the authority to promulgate work practice .regulations, he seemingly' had _no. authority to enforce them -- ,, . * , * 7" ~ tlz "- `the enforcement provision referred only to violations of -''emission'standards42 II. S. C. 7413 (b) 434 13. S. at. 306, 98 S.Ct. at 583. ' Congress' again; reacted and added 42 TJ.S.C. 7412(e)(5)'in 1978 which provides that "[ajny 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 previsions of this chapter'*;' i. ea work practice standard equals an emissions standard for purposes of enforcement. Pub. L. No. 95-623. Oi--V. .. - In PPG Industries v. Harrison, 660 ?.2d 628, 636 (5th Cir. 19Si, the court cited Adamo and held that the EPA had authority to issue only emission standards before the 1977 amendments. While PPG concerned Section -HI of the Act, the -o-- TEN 5021 -6- issues ware analogous to that of the instant case -- whether the contested regulation was a work practice stan dard/ and, if sc, 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 stan dard beyond the statutory authority of the E?A" and such requirements are enforceable only if promulgated subsequent to the 1977 amendments. Id. While the Administrator reminds us that we may not "consider -the sufficiency of the regulation and argues' that it is indeed an emission standard, we note the words of Justice Sehacuist in Adamo Wrecking, "Congress ... .j` 'an emission standard hy his mere designation."- 434 U.S.,at . 283/ 9S 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 1 an emission', standard1 within the broad limits of the congressional meaning of that term." 434 tJ.S, at 2S7, 98 - S.Ct...at 573. '*.=. , ... ' ___ * The regulations 5oveming. emergency discharges of. vinyl - . chloride were promulgated in October, 1976, prior to the 1977 amendments. 41 Jed. 3eg.- 46360 , new codified at 40 CJ.H. 6150 et sec.; specifically, 40 C.F.3, ol.65Cal and 61,64(a) (3 TEN 5022 Thus, those regulations may be enforced by this court only if they are in fact emission standards and not work practice regulations camouflaged under the rubric of "emission stan dards ." Apparently, the two regulations covering emergency discharges of vinyl chloride have been used for little but gathering dust since their enactment. Tew cases discuss the work practice/emissions limitations dichotomy, and even - 2 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' Environmental'Protection Agency 642 F.2d 48 (3d Cir.71931). 3oth sides have referred to a case subsequently arising out of that litigation, United States of America v.' Tenneco Chemicals, No. 30-4141 CD.N.J. July 6, 19 83.) /'where the court, in an unpublished opinion, 'disposed of numerous defenses raised by Tenneco again under the same prevision at issue here, but the court did not mention whether the regulation was challengedas 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. 2, While virtually no" jurisprudence exists cn this issue, a few ccmmentatcrs have discussed the vinyl chloride regulations. Two commentators writing after the Adamo decision characterized -7- TEN 5023 -8- ( the vinyl chloride standards as work practice standards which would have to be repramulgated under the 1977 amendments. Citing 61.65 specifically, Dcniger matter of factly describes it as specifying "the use of certain equipment and operational techniques." Loniger, supra, at 566. (See other references to work practice regulations for vinyl chloride at p. 567, n. 360; p. 563, 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. Eh"V13.0NMEWTAL LAW INSTITUTE, (Design, Equipment, Work Practice or Operational Standards: ' The 1977 Amendments and Adamo wrecking Co., in ALE AND WATER POLLUTION"CONTROL LAW: 1980 at 183 (Wetstone,. ed. 19 80) . - t The government argues that 40 C.E;R. 61.65Cal 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' Tof `emergency discharge under " certain "conditions. ;-r/' >- 3. -5 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 ayoided by taking measures to prevent the discharge. . Within 10 days of .any relief valve discharge", the owner or operator of the source frcm which the relief valve discharge' occurs' shall submit to the Adminis trator 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 determining the vinyl chloride loss, the action that was taken to prevent the discharge, and measures'adopted to prevent future discharges. ' 61.64(a)(3) Manual vent valve discharge: Except for an emergency manual vent valve discharge, there is to be n.o discharge to the atmosphere frcm any manual vent valve cn a -3- TEN 5024 polyvinyl chloride reactor in vinyl chloride service. An emergency manual vent valve discharge means a discharge to - the atmosphere which could nor have been avoided by taking measures to prevent the discharge. Within 10 days ox any discharge ~o the atmosphere from any manual vent valve, the owner or operator or the source tram which the discharge occurs shall submit to the Administrator a report in writing containing zhe information on the source, nature and cause of the discharge, the date and time of the discharge, the approximate total vinyl chloride less during the discharge, the method used for determining the vinyl chloride loss, the action that was taken to prevent the discharge, and measures adepts to prevent future discharges. (.Emphasis added) Ethyl respondsthat_the regulations, while phrased in terms of no discharge, indirectly require the use of certain work practices.' The regulations actually- allow- non-quantifiable discharges_cm .vinyl chloride,.provided certain'work practices and "operational techniques^are. _observed.- ' l"-"-''. - An eitissidn"'standard-is'"to be'distinguished from a work practice standard. - An emission "standard is a quantitative'^ - v .'level' to be attained by use of 'techniques,' 'controls,' ... - and ' technologyAdamo ' 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 Administrate is now authorized to enact a "design, equipment, work practice, or operational standard." 42 U.S.C. 7412(e) Cl). The reculation at issue in Adamo had been proposed originally as 4 a limit on. emissions of._ zero. - ........... 4. "Zero" emissions are possible under the Act. See S.iep. No. 1196 f 91st Cong., id Sess. at 20 C1970) and Senate Ccnm. -9- TEN 5025 10- 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. 93-13, 93rd Cong., 2d Sess. at 133 (1974) 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, at 434 XI. S. at 237, .-9S S.Ct. at 57 4. Ethyl argues that.the defendant in Adamo 'had two choices: He could have aero emissions or .he could comply with the work practices required by the -regulations.v'Ethvl contends it has the same two choices: It 'may haye zero_ Emissions or it may comply :with the instructions''set out'by EPA. in the preamble to the regulations,"which describe the "measures" required by EPA to prevent 7 a- ............................. ............... *~" ) 'r. A zero emission limit.is being proposed for relief discharges which can be prevented. Inmost : cases, "such discharges from reactors can be pre- vented 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 V upset conditions and ultimately to a recovery system, providing employees with improved training on pre senting and handling upset condition, and utilizing - a stand-by source of power. Eor other pieces of equipment, increasing pressure due to inert gases in the system can be relieved by manual venting to a gasholder or reccyery system. The conditions which lead tc discharges can also be prevented in most cases by proper'handling and transfer of vinyl chloride cr .ateriais ccntaininc virvi chloride. .Discharges TEN 5026 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 SPA within 20 days concerning the nature and cause of the discharge. This notification prevision is necessary to permit SPA to investigate the surreudning conditions and determine whether the discharge could have been prevented. 40 Fed. Peg. 59539 Plainly the Administrator does not limit "emergency" to earthquake, tornado, flood or other natural disaster, for the regulations themselves speak in terms of discharges which could not have been avoided by taking "measures." The court' can only conclude that the regulations equate "measures to "work practices" and the Agency's posture in United States v." Tenneco ChemicalsXnc. , supra, fortifies this ; conclusion. The'' court ''there "noted that EPA-had instructed Tenneco" that only emergency discharges of vinyl chloride that could not have been prevented by taking certain precautions were allowed. A letter from EPA had advised Tenneco that the company must demonstrate- that discharges could not have been prevented by implementing any of the following procedures; ~ (2) "employee training programs, including instructions on emergency procedures;- (2) proper inspection and maintenance programs (.Including replacement of relief valve seals cn a sufficiently frequent _ basis in order to prevent their rupture); (3) proper design and operation cf process and control equipment; and _1 1 -- TEN 5027 -12- 1: (4) installation and operation of all control equip ment needed to comply with the vinyl chloride standard. Each of the "measures" to which EPA made reference relates to "design/ equipment, work practice, or operational standard, or combination thereof," the definition of work practice. 42 D.S.C. 7412(c). Ethyl argues', therefore, that the court's determination of whether a source has violated the emergency discharge regulations will be based not on the quantity of what is emitted but, on' whether the scores has implemented the-' measures "racuired by the EPA.^--:/ - " ~.-V Exactly'wnat .constitutes'an ''emergency" or an "avoidable discharge":is''un'ciear'.T'i:iirhe"'gcyernment~ argues that that very . ' . ` ' "t-" T.` *--' * *- ' ''S -4 T*'"---- * --' . * * t. 0 ^ , , _ '**`7. . t '1'"- t"*'* uncertainty "is~what"_renders this regulation an emissions - , -limitation.' "'.The' government continues that Ethyl is limited to"zero emissions" by"whatever method it chooses; it is allowed, however, to discharge in an emergency -- an argument ' which takes this court in a circle, right back to the definition of " emergency .n What the regulation actually says is that . vT- unavoidable discharges are these which could not be avoided by the application of work practices. " * . v. i i. A commentator discussing the enactment of the Clean Air Act .emphasized"the need to construe the Act as a whole. The -.12- TEN 5028 -13 "attainment of ambient air quality," he quoted from Senate Reports, "is possible only through the enforcement of pre cise and objective emission controls." Jorling, The Federal Law Pollution Control, in FEDERAL ENVIRONMENT LAW HOI (E. Dolgin and T. Guilbert, eds. 1374}. An emission standard, according to the Senate Report and the commen tator'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." Id. at 1102." Once standards .are set their violation "should be a relatively clear, evidentiary matter." 'Id. at 1107. 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 hut its- power to enforce compliance after an obvious violation. .The 1977 amendment setting cut 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. 7412Cel. -13- TEN 5029 -J.4- C- These emergency discharge regulations do not meet those goals of clarity and ease of enforcement. The ccrurt is aware, of course, that it may not look into the sufficiency of a regulation promulgated by the Administrator. If these regulations are emissions standards, they must be enforced no matter hew poorly drafted. Sec-ions 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 compliance with work practices set out, however vaguely^ by the EPA. ' The conclusion Is inescapable that -h*' 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 "unavoidable" 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 GAANTZD. ' . / - TEN 5030