Document ppRL4NQ14Vpr3X6EGYJQ6dX6B

JOSEPH KELLER JEBOME H. BECKMAN CHARLES M. MEEHAN WILLIAM H. BOBGHESANI, JB. ROBERT R TIEHNAN WAYNE V. BLACK DAVJI) L. HILL MARTIN V. BEBC0V1CI PETER M NEMBOV JOSEPH E. HADLEY, OR. CAROLE C. BABRIS FETEB THOMAS SMITH MICHAEL T. MOBBONT. LARRY S. SOLOMON JOHN B.DCBECK CHRISTINE A. MEAGHER 1-0* OFFICES Keller and Heckman 1150 1 7V> STREET, N. W. SVITE 1000 WASHINGTON, D. C. 20036 June 21, 1977 TELEPHONE 802 457-1100 CABLE ADDRESS KELMAN' WRITERS DIRECT DIAL NUMBER (202) 457-1116 RECEIVED MX 2 3 (977 To: Polyvinyl Chloride Safety Group PVC Manufacturing Technology Committee Re: SPI--VCM/PVC--EPA Gentlemen: The purpose of this letter is to transmit to you copies of communications recently received from Associate Counsel for Environmental Protection Agency (EPA) matters. The first item is a reproduction of a letter Gary Baise handed out to those attending the June 15, 1977 Lawyers Committee Meeting. This letter, the substance of which was also discussed at the June 16, 1977 meeting of the Manu facturing Technology Committee, addresses EPA's new policies governing contacts between Agency personnel and industry representatives. As is explained in the letter and the memoranda attached to it, EPA's new approach to rule making was prompted by a recent Court decision which severely criticized a Federal agency where the informal industry contacts were so pervasive that the agency's independence of judgment was questioned. As a result, EPA has adopted the position that it will only engage in "on the record" discussions with non-Agency personnel relative to the sub stance of any rule making. Item two is a report on the issues considered at the Lawyers Committee Meeting. The memorandum discussed therein has, because of its length, only been sent to members of the Lawyers Committee. Should you have any questions, comments or suggestions relative to any matter discussed herein or in the attachments, or if there is anything further we can do to be of assistance to you, please do not hesitate to let us know. Cordially yours, Enclosures /7 SPI-07933 Ql O ssv . : ; Z.S T Y 5'A'-'iS 5i3 <cv'N jON*'"4\ z.;a\sCS AND^iA E . *K 5 " K 1 *. ChaO'.ES a.S4-= 2 a 5vE:n , L 5 D D s 3 SCOTT V.. 80AiN lav*, or- Beveridge. Fairbanks & Diamond Gv.z "A = =?iG $cva = -; So^"h Washington. D. C. 20006 s:3-?8:o June 21, 1977 Jerome H. Heckman, Esquire Keller & Heckman Suite 1000 1150 Seventeenth Street, N.W. Washington, D.C. 20036 Dear Jerry: On May 24, 1977, Mr. D. C. Nuechterlein appointed a Lawyer's Subcommittee for the PVC Safety Committee. The Subcommittee is composed of Jim Murray (Union Carbide), Gary Ford (Stauffer), Harold Fast (Goodrich), Leonard Castillo (Dow), and Alan Topol. The Subcommittee held its first meet ing on June 15, 1977, in Washington and enclosed is a copy of the agenda for the meeting. Also in attendance were Bob Hill (Diamond) and Harvey Rosenzweig (Borden). We discussed each of the procedural matters listed under "I" and you should be advised of one item. Regarding item "D," Executive Committee, it was determined that Joe Hadley, Alan Topol and I would be members of this committee. Regarding the substantive issues, the following action was taken: A. Ex parte contracts with EPA -- We provided a copy of our June 14, 1977 letter to you discussing Home Box Office v. FCC, No. 75-1280 (D.C. Cir. 3/25/77). It was suggested that all counsel advise their company technical personnel to be cautious in dealing with EPA from this point forward because EPA officials will prepare a memorandum on all conversations they have with anyone from SPI or its members. Company personnel should prepare SPI-07934 Beveridge. Fairbanks & Diamond Jerome H.- Heckman, Esquire June 21, 1977 Page 2 their own memos on all conversations with EPA staff. Some may wish to send letters to the agency setting forth their under standing of what was discussed so the public record will not contain only EPA's recollection. B. Status of EPF v. Train -- The Court has not acted on the motions to dismiss. As you know, there is no obvious explanation for why a court fails to act. We reviewed all the steps which had been taken to get the Court to rule. The Lawyers Committee concluded that nothing more could be done at this time. C. Legal action to prohibit the pending ruleroaking -- Frustration was expressed by all over EPA's present course of action. We explained that based upon a series of court decisions, re lief was not promising in the present situa tion because we are not yet dealing with "final action" by EPA. The Committee re quested a memorandum of law on this issue and it is attached. D. SPI's Freedom of Information request -- We have filed another request with EPA for additional information on the Vinyl Chloride situation and it has yet to respond. We dis cussed the reasons for filing and the goals to be achieved -- primarily production of documents not previously supplied -- and everyone agreed with the action. E. SPI's request for a public hearing -- We reviewed the reasons why SPI requested a hearing and proceeded to discuss the type of hearing which will be most beneficial to Sl'1-07935 Beveridge. Fairbanks & Diamond Jerome H. Heckman, Esquire June 21, 1977 Page 3 SPI. We suggested the possibility of a "hybrid type" hearing -- enunicated by the courts to mean a combination of general comments and adjudicatory-cross examination methods on certain issues. This would be worth considering if the VCM/PVC Technology Committee raises major issues which it be lieves need to be explored through cross examination of EPA officials. Some committee members felt we have sufficient record for appeal at this point because of the informa tion obtained under our original Freedom of Information Act request which was quite favorable to the industry. There are risks involved in cross examination of EPA wit nesses, because they could "rehabilitate" themselves. EPA would also have the right to cross examine many industry witnesses. A preliminary vote was taken on whether to pursue the request for a "hybrid-type" hear ing. The vote was a virtual tie with Joe Hadley and me abstaining. It was agreed that I should have the option of seeking a "hybrid-type" hearing if technical issues warrant it. We will confer by phone with the Committee before a final decision is made. F. Potential challenge to the proposed amend ments -- We discussed the several grounds available to attack the proposed amendments once it is promulgated. It was concluded there are several solid grounds for attack but that we must await EPA promulgation of the final regulation. If you desire any additional details regarding this meeting, please advise. Sincerely yours, I GHB:cl Enclosure Gary H. Baise SPI-07936 spi T..v.-:Yr h cc:::;i':icr i 5 , I 17 I, LAWYERS TO.'1M177 EE GREAT I IATIOE A. Role B. Communica tion C. Membership D. Executive Committee II. SUBSTANTIVE ISSUES A. Ex parte contacts 'with EPA B. Status of EPF v. Train C. Legal action to prohibit the pending rulemaking D. SPI's Freedom of Information request E. SPI's request for a public hearing F. Potential challenges to the proposed amendments 1. V7hether there is an evidentiary base for the proposed amendments. 2. Whether there is legal authority for the following: a. Process standard b. Separate emission requirements for existing and new sources c. Offset requirement d. Three year compliance period 3. Whether there is adequate consideration of the environmental and economic impacts. SPl-07937