Document bOYLaRK7D6g3JxQz2nYEzqMB3

JQSCAM C. KELLER ^(*QM(H hKCXHAN ChaAlCS m MCCHAM WILLIAM M AQROHCSAMI. 4R. MALCOLM 0. MACAATMUA WAV** V. ALACK MAKYlM W, CCOV(CI JOHN A CLQKtO CAROLE C. HANAlA MICHAEL F mOAAOhC LAKRv *, SOLOMON JONH A, QUABCH CHRISTINE A. mcaohea shialcy a. fujimqto MAAK FOX EVENS mtL m LA CRUZ Uiwmiwt A. HALNRlN AALRW A,' KNMOMI C. ftOVLAi JAAACTT EOWAA0 L. HORWC* retea A. susaea SHEILA A. MILLAA AUASELL H. FOX LEE M. WEINEA ilcnc aimocl hcllea SUSAN J. ALUM MAAK C. HAVES* QCACK a. ALOOM AHQAA O.A, OCHMIS KCNMETN A, Wa. UR. ADMITTED in NEW VOAK AMO VlROINIA ONLY LAW OFFICES Kellee and Heckman 1180 IT*" STHEET, N.W. SUITE lOOO WXSH1NOTON, D.C. 20038 (208) 487-1100 March 15, 1985 A RECEIVED MAR! 9*85 Route: . .-TI.L"- TKLSCQAICA Vtyu ESS-7AA* -- "KCLMAN" Copy:____ WAITER'S DIRECT DIAL NUMBER 7202)457-1116 File: X-F: To: SPI Vinyl Institute Manufacturing Practices Committee Re: Comments on Proposed Amendments to the Vinyl Chloride Standard Ladies and Gentlemen: A copy of the comments filed with the Environmental Protection Agency (EPA) on the proposed amendments to the National Emission Standard for vinyl chloride are enclosed. Except for minor editorial changes, the final comments are the same as thofee circulated with my letter of March 11, 1985. I was happy to assist the Committee in the preparation of these comments and believe that they reflect both the con sensus of the Committee and a solid presentation. I would very much appreciate receiving copies of comments filed by individual companies so that our files will be complete. If you have any comments or questions or if I can be of any further assistance, please let me know. Cordially yours. Enclosure Peter L. de la Cruz VEV 000100963 Th Vinyl Institute April 4, 1985 k A TO: VI Manufacturing Practices Committee VI Legal Committee FR: Meredith N. Scheck RE: NRDC v. EPA As you are aware, on March 28, the Vinyl Institute filed a motion for Leave to Intervene in NRDC v. EPA, No. 85-1150 (D.C. Cir., March 8, 1985), a case challenging EPA's withdrawl of the June 2, 1977 proposed amendments to the vinyl chloride standard. The attached letter from counsel, dated April 1, reviews why this action was necessary and brings you up to date on other important information. If you have any questions after reviewing the attached, please call Roy or me. Please heed the attorney - client privilege notation. ^ MNSiras attachments Manufacturers Practices Committee 4/1/85 K&H letter 3/28/85 Beveridge & Diamond letter Legal Connlttee 4/1/85 K&H letter Ml 6 85 3/28/85 Beveridge & Diamond letter VI Motion for Leave to Intervene Routs: - NRDC Petition for Review Copy:------- File: ___ X-F; ____ A Division of THE SOCIETY OF THE PLASTICS INDUSTRY, INC. 355 LEXINGTON AVENUE NEW YORK, N.Y, 10017 (212) 573-9400 UEU 000101084 *< * HCNRYL. OlAM mo ALBCMT J. CVCIttOQC0 GAMY M. 6AI6C HAROLD himmclman CHRlRTOPHCR H. 6UCKLCY, JR. CDWAftO H. rOftGOTSON j. Marshall colcman stcrhcn l.oohoom J NATHAN z, CANNON AICXANOCR W. SlC*CK JOHN N. HANSON ANOPCW C. MISHKIN CAINCS OWATHMCYaUX CYNTHIA A. LCWIS KARL S. 0OUNOCAU JOHN S. OUTTMANN STCNHCN N. MCLTON OON <J. SCROOOIN AMt L.COWANOS ROSCRT 6RAGCR JOHN ft. ELORIDGE RICHARQ g. OAVIS THOMAS ftICHICHI CHRISTINA T. SIMMONS DEAN H. CANNON VIRGINIA S. ALSRCCHT pauu e shops, nr ELISABETH A. ROBINSON CARL CAROLET Or COUNSEL law orrrces Beveridge & Diamond, R C 1333 New Hampshipe Avenue, N. W. Washington, D- C. 0036 (202) 620-0200 TCLCCONfCn(202}62e^023A WRITER'S DIRECT DIAL MUM6CR (202) 828-0240 March 28, 1985 A CVCRlO C A DIAMOND SUIT* 25 lO* RANK AVCNUC NEW YORK, N. Y. 10176 <212) 657-3353 JIM J. T022I CONSULTING ECONOMIST Peter de la Cruz Keller & Heckman 1150 17th St., N.W., Suite 1000 Washington, D.C. 20036 D ar Peter: Enclosed is a copy of the vinyl Institute's Motion for Leave to Intervene in NRDC v. EPA, No. 85-1150 (D.C. Cir. March 8, 1985), a case challenging EPA's withdrawal of the June 2, 1977 proposed amendments, to the vinyl chloride standard. Also enclosed is a copy of a letter from Mark Fitzsimmons, an attorney with the Department of Justice, to Rob Brager of this firm, stating that the Department will not oppose the motion to intervene, will treat the Institute as a party, will include the Institute in settlem nt negotiations, and will let the Institute comment upon any proposed settlement with NRDC before that settlement is filed with the Court. In return, we have agreed not to file a Petition for Review of EPA's withdrawal of the June 2, 1977 proposed amendments. We believe that receipt of the Fitzsimmons letter is a modest victory for the Institute. The Institute's Petition for Revi w could not have been filed within 60 days as required by the Cl an Air Act and would not have sought reversal of any EPA action. For these reasons, a dismissal of the Petition would almost certainly have been sought by the Government and granted by the Court. Consequently, we believe that this letter provides the Institute with more insurance against a disadvantageous settlement of NRDC v. EPA than would a Petition for Review. It appears at this juncture that there is little possibility of settlement. We have learned from government attorneys that NRDC wants to stay the case and then consolidate it with any chal lenges to the new vinyl chloride standard, once that standard is promulgated. EPA is leaning against agreeing to a stay, believing 000101037 Beveridge & Diamond. P C A Peter de la Cruz March 28# 19$5 Page 2 that it haa a good case on the merits. EPA may want a definitive ruling that it can withdraw proposed standards issued under Section 112 of the Clean Air Act# and may see this case as a good test case. For these reasons# government attorneys believe the case will not be settled. Finally# based on our experience in the vinyl chloride enforcement arena and conversations with government attorneys# w b lieve EPA may be planning to bring more actions based on relief valve discharges# especially in Texas# and may be planning to bring more suits involving the 10 ppm standard# similar to the litigation against Georgia Pacific. The timing of such enforce ment actions is unclear# however. We will# of course# keep you fully apprised of any developments. Cordially GHB/bjd Enc. YEY 000101088 MNS:MPF Wutitnflo*. D.C 30530 I k March 28, 1985 Robert Brager, Esq* Beveridge & Diamond 1333 New Hampshire Avenue, N.W. Washington, D.C. 20036 Re: NRDC v. EPA (No. 85-1110) Dear Rob: As discussed In our conversations of yesterday, this letter spells out the position of EPA with regard to the parti cipation of your client, the Vinyl Institute, In the above caafe. We will not oppose your motion to Intervene. If your motion Is granted, your client will be treated as any other party In 1 the case. To the extent there are any settlement negotiations with NRDC, you will be apprised of those discussions, and. If practicable, you will be Invited to them. If In our Judgment however. It Is necessary to meet Individually with any party In the case at any time, we reserve the right to do so. Finally, In the event there Is a settlement, you will be given an opportunity to comment thereon before it Is submitted to the court. In return, the Vinyl Institute will not file any Independent petitions to review EPA's withdrawal of Its June 2, 1977 proposed amend ments to the vinyl chloride standard. Sincerely, Assistant Attorney General Land and Natural Resources Division ajBy: > Mark F. Fitzsimmons Attorney, Environmental Defens Section VEV 00010103? I received JQttPM C. KCt.W JCROHtH HICKMAN CHARLO w. mckham WILLIAM H, QHCSAMI, JN. halcolm d. macamthu* WAYN V, SLACK MANTIM W SCftCaVICI JOHN *. CUKD CA*OLf C, HAMHtS MlCNACt F MOAAON C UAANV a. 90V.0M0N jomn a. ouaccK CHMltTlNC A HCAOHCR HIALEY a FU^IMOTO MANM FOX CVCN pctcM k.Hu cmjx LHAAWLMWNObfc,M44mMMMOALNAIA1M e. ftomtm oaaaett iuiwmO l. KoawiH pctka a. auaacit tHEl LA A MILLAR numill h. fox CEE M. WEINCM iccne iknoeu mcclep* ulANj alum MAM C HAVEa* OENEH A. a LOOM IAMOMA J.F OCNHta ACMMCTM A. OHIOO, J*. A0MITTC0 IN NEW YO*X ANO VINOtMlA ONLY LAW OFTICBS Keller and Heckman 1150 ir-" STREET, N.W. SUITE lOOO WASHIKOTON, D.C. 20035 (208) 457-1100 April 1, 1985 CONFIDENTLAL APR - 1Q85 DR. R.T. GOTTESMAM TCLECOFICM <ao *** CAOLf ADOECSS XCLMAN' WNltCN'9 DiaCCT DIAL NUMtCK (202) 457-1116 FEDERAL EXPRESS Ms. Meredith Scheck The Society of the Plastics Industry, Inc. 355 Lexington Avenue New York, New York 10017 LAWYER'S WORK PRODUCT. NOT SUBJECT TO REQUEST FOR PRODUCTION OB OTHER BEQUESTS FOB DISCOVERY. ATTORNEY - CLIENT PRIVILEGE APPLIES. Re: Natural Resources Defense Council v. EPA Dear Meredith: As you are aware, we have moved to intervene in an action brought by the Natural Resources Defense Council (NRDC) challenging the Environmental Protection Agency's (EPA) with drawal of the Agency's 1977 proposed amendments to the vinyl chloride standard. The withdrawal appeared in the preamble to the EPA proposed amendments published on January 9, 1985. 40 Fed. Reg. 1,182. As the enclosed letter from Gary Baise discusses in more detail, a primary concern is that the Vinyl Institute be per mitted to participate as a party in this litigation and in any settlement negotiations. For example, when the Environmental Defense Fund (EDF) instituted litigation after promulgation of the 1976 standard, SPI was excluded from the settlement negotiations which ultimately led to EPA's 1977 proposal. Thus, 1 am particularly pleased to enclose a March 28, 1985 letter from the Justice Department stating that it will not oppose the Vinyl Institute's Motion to Intervene, will treat VI as any other party in the case, and will involve VI in any settlement proceedings. This Justice Department letter, therefore, offers us the opportunity to effectively represent the interests of the Vinyl Institute and its members. We ask that you treat this letter as confidential at the present time and not publicly distribute it. VEV 000101090 Ms. Meredith Scheck April I, 1985 Page Two. Ket.t.er and Heckman It is difficult to predict at this time whether the NRDC case will be litigated now or whether it will be stayed until the 1985 proposals are finalized. Naturally, we will keep you informed of any significant developments. In the interim, if you have any comments or questions, please let me know. Cordially yours. Enclosure Peter L. de la Cruz UEV 000101091 A Interoffice Communication TO: FROM: DATE: StJBJ: Harry Garrison John Friend Dick Conrad John McCulley JJH: JCL: XF:----------- Joe Ledvina April 2, 1985 INFORMATION ON VCM NESHAP'S VISIA Recently, I sent you NRDC's petition For Review of the EPA decision to recind the 1977 proposed amendments to the VCM NESHAP's. The Vinyl Institute has decided to intervene In the review process. Attached is a copy of the Vi's motion to Intervene. The second attachment is a copy of the NY Times article on the recent NESHAP's proposal. Roy Gottesman of the VI called the reporter, Philip Shabecoff, to correct inaccuracies. According to Shabecoff, no follow-up article is planned in the near future. Peter de la Cruz of Keller and Heckman had someone from his firm go through the docket at EPA. There were 12 sets of comments filed on the January 9 proposal. Vista's comments were in the docket. I will be receiving copies of comments submitted by those outside of the Vinyl Institute. As I understand it, NRDC/EDF, CMA, National Solid Haste Management Association, and a Delaware legislator filed comments. I'll send these along when 1 receive them. Also enclosed is a letter I came across in my files from EPA to Firestone (now Oxy) granting several equivalencies. One of the equivalencies is on Reactor Opening Loss. Give me a call if you would like to discuss any of these items. 000101092 jOjih r -icl^L* H C.HABLES M yH*H W'..l AM rt leHSHTlAN MAl.COl M p M*C*THU WA"Sl* fliACK MAR'IS W RIRCOVIIJ JOMMS EiSRfJ - AJJlf C H AB Pti U.IVAF.L r mOBBOnE L 3 Sf.H OmOm ..QMS 9 ,)i;S:X IrlH ';lr Xf A MEACiHI# :,mai r s f'jjixOiO MAS*' rox IVIN^ I Tl [1 IN N F.W YORK AN f) VIRGINIA ONLY LAW OFFICES Keller and Heckman 1150 1 7 T " STRIiET, N.W. SUITE lOOO WASHINGTON, D.C. 20030 ( a2 0'a2) 7-liOO Ap cil 1, 19 8 5 TELL* 49 4 3 3 31 12T0E0LE2C4O4PrIEeRal CABLE A.DORESS KCL-AN WHITER 5 OlHECT OIAl N'JMRFH (202) 457-1116 FEDERAL EXPRESS Ms. MerediE.il Sc neck The Sociery of the Plastics Indus try, Inc. 355 Lexington Avenue New York, New York 10017 Re: EPA Vinyl Chloride Standard Dear Meredith: On March 29 , 1985, we reviewed the Environmental "O u Protection Agency's (EPA) docket tor the proposed amendment* t-O the vinyl chloride standard. Although the comment period ended on March 25, 1935, EPA typically accepts comments postmarked On the last day of the comment period. Thus it has been Qur practice to wait several days before reviewing the dofcrket.' A total of 12 comments were filed. The. commenting.,/ parties were: '1/ Natural Resources Defense Council 3 (Environmental Defense Fund) Delaware State Representative Jeffrey G. Maefcffy,,,; f National. Solid Wastes Management Association ^Georgia Gulf Corporation Chemical Manufacturers Association Air Products and Chemicals, Inc. Dow Chemical U.S.A. Occidental Chemidal Corporation PPG Industries, Inc. Shell Oil Company Vista Chemical Company SPI Vinyl Institute '1 v(`f, j Ms. Mere April 1 Page 2 Schec k Keller amd Heckman A Comments by parties other than the Vinyl Institute and it= members are enclosed. The Natural Resources Defense Council (NRDC) stressed the need for a zero emissions policy and opposed withdrawal of the 1977 proposal to amend the vinyl chloride standard. NRDC argued that Section 112 of the Clean Air Act is technology-forcing and that EPA should further limit discharges of vinyl chloride. Turning to the 1985 proposed amendments, NRDC contended that the use of a numerical limit grants the industry a "free" number of discharges. The comments also support the use of a gas holder systems to con tain releases. NRDC supported retention of the current leak detection and elimination program under the vinyl chloride standard rather than the leak detection program under Subpart V of the hazardous air pollutant regulations. The Council opposed changing the the 10-day reporting requirement to a quarterly requirement and argued that any non-emergency, w, preventable release must be reported under CERCLA. The NRDC * comments were filed jointly with the Environmental Deii<3 (EDF) ' Delaware State Representative Jeffrey G. Mack commented that EPA should withdraw its current proposal and replace it with one which provides added measures of risk reduction. Representative Mack noted that the State of Delaware and Formosa Plastics Corporation entered into a consent agreement under which Formosa agreed to design and construct a contain ment system for capturing re leasee of vinyl chloride monomer (VCM) from reactors and other vessels. His comments suggest tnat EPA impose similar obligations on the entire industry. Comments by the National Solid Wastes Management Association (NSWMA) raise a concern with VCM contamination of ground water. The comments contend tnat the permissible VCM- levels lft ins could lead to ground water contamination. Thus, NSfliakar 9 u e s , the vinyl chloride standard reflects a lack of coor<raBHpon among EPA's various programs. The strong implicatlSPr is that polyvinyl chloride resins be treated as hazardous waste. CofTiments filed by the Chemical Manufacturers Associa tion (CMA) are also enclosed together with those of Georgia Gulf Corporation. CMA made several additional suggestions for the leak detection and elimination provisions of Subart V as well as comments on Method 21. Ms. Meredith Scheck April 1 5 Page 3 . A Kei.lf.r and Heckman In addition to the comments, copies ot the New York Times and Washington Post articles on the proposed vinyl chloride standard are also enclosed. Since the Manufacturing Practices Committee previously discussed inquiries by Repre sentative Waxman, a Washington Post report on statements by Representative Waxman based his inquiry is enclosed. A Federal Register notice concerning a proposed consent decree in an emergency relief and manual vent valve case is also enclosed. As you are aavwarree ,, the United States Court of Appeals for the Fifth Circuit is reviewing whether the emergency relief valve provisions o t" the vinyl cnior ide standard are an impermissible work practice or an acceptable emission limita tion. Copies ot the EPA January 1985 proposed amendment tiled with the court which then asked for comments on wh the proposal mooted the lawsuits. A response filed by t industry defendants is enclosed for your information. I aptly describes tne impact of the EPA-proposed amendment gover nments ' response is also enclosed. If you have any comments or questions, please let me C o r dla 11y your s, Enclosuie Pelei L. de la Cruz