U.S. v. Ethyl Corp.

• Decision Date: 03 June 1985
• Docket Number: 83-3656,Nos. 83-3537,s. 83-3537
• Citation: 761 F.2d 1153
• Parties: , 15 Envtl. L. Rep. 20,589 UNITED STATES of America, Plaintiff-Appellant, v. ETHYL CORPORATION, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. OCCIDENTAL CHEMICAL CORPORATION and Firestone Tire and Rubber Co., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1153

761 F.2d 1153

22 ERC 1913, 15 Envtl. L. Rep. 20,589

UNITED STATES of America, Plaintiff-Appellant, v. ETHYL CORPORATION, Defendant-Appellee.

UNITED STATES of America, Plaintiff-Appellant, v. OCCIDENTAL CHEMICAL CORPORATION and Firestone Tire and Rubber Co., Defendants-Appellees.

Nos. 83-3537, 83-3656.

United States Court of Appeals Fifth Circuit.

June 3, 1985.

Stanford O. Bardwell, Jr., U.S. Atty., Baton Rouge, La., Anne S. Almy, Robert L. Klarquist, Appellate Section, Ruth McQuade, Environmental Enforcement Section, Land & Nat. Resources Div., U.S. Dept. of Justice, Washington, D.C., R. Gordon Kean, Baton Rouge, La., for plaintiff-appellant.

Richard Marshall Lavers, Baton Rouge, La., Baker and Botts, F. Walter Conrad, Jr., Martin L. McGregor, Houston, Tex., for Ethyl Corp.

Stephen S. Livingston, Carolyn M. Brown, Dallas, Tex., Horace C. Lane, Baton Rouge, La., for Occidental Chemical.

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

Appeals from the United States District Court for the Middle District of Louisiana.

Before CLARK, Chief Judge, GOLDBERG and RUBIN, Circuit Judges.

GOLDBERG, Circuit Judge:

The United States Environmental Protection Agency ("EPA") instituted these two consolidated civil enforcement proceedings in federal district court, one against appellee Ethyl Corporation, the other against appellees Occidental Chemical Corporation and Firestone Tire and Rubber Company. The EPA sought damages and injunctive relief, claiming that the companies had exceeded the allowable emission levels of vinyl chloride and polyvinyl chloride under the manual vent valve and relief valve regulations published at 40 C.F.R. Secs. 61.64(a)(3), 61.65(a) (1984). ¹ The district court ruled that the regulations had been promulgated in excess of the EPA's authority under the Clean Air Act ("Act") Sec. 112, 42 U.S.C. Sec. 7412 (1982), and therefore dismissed the complaints for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Because the district court lacked subject matter jurisdiction to consider the substantive validity of the regulations, we reverse.

In 1970, Congress amended the Clean Air Act to authorize the Administrator of the EPA to promulgate national "emission standards" for hazardous air pollutants. ² Pub.L. No. 91-604, Sec. 112(b)(1)(B), 84 Stat. 1685 (1970) (codified as amended at 42 U.S.C. Sec. 7412(b)(1)(B) (1982)). Section 112 directed the Administrator to publish a list of hazardous air pollutants and to prescribe for each an emission standard affording an ample margin for safety. 42 U.S.C. Sec. 7412(b)(1)(A), (B). Emission standards limit the amount of hazardous air pollutants that can be discharged into the environment. Unlike "work practice standards," emission standards do not tell companies how to discharge--they only say how much. Under the 1970 amendments, the EPA was permitted to promulgate only emission standards, not work practice standards. ³

As with most congressional delegations of lawmaking by rule, the Act left it to the Administrator to pour content into these relatively broad concepts. The statute was and is clear about one thing, however: an emission standard is subject to judicial review only in the United States Court of Appeals for the District of Columbia, and only if the petition for review is filed within sixty days of the Administrator's action. ⁴ Id. Sec. 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." Id. Sec. 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). ⁵ 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 538 (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. Sec. 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 standards in name only. 576 F.Supp. 80, 86 (M.D.La.1983). In the district court's view, the regulations, rather than merely prescribing 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 discharge "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, ⁶ 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 acknowledged that, had it not been for the totality of the Act's structure with regard to criminal enforcement proceedings, the clear language 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 attach 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 'emission 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 prosecutions, the Court further relied on "the familiar rule that, 'where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant.' " Id. 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, ⁷ we would be remiss to allow the narrow holding of Adamo Wrecking to bulldoze the statute's jurisdictional limitations in civil enforcement proceedings. ⁸ 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. ⁹ Assuming 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 Sec. 307(b)(2) of the Act. This they may not do. The narrow inquiry to be addressed by the court in a criminal prosecution is not whether the Administrator has complied with appropriate procedures in promulgating the regulation in question, or whether the particular regulation is arbitrary, capricious, or supported by the administrative record. Nor is the court to pursue any of the other familiar inquiries which arise in the course of an administrative 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 U.S. 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 transgressions 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....