United States v. Borden, Inc., Civ. A. No. 83-1892-MA.

• Decision Date: 30 September 1983
• Docket Number: Civ. A. No. 83-1892-MA.
• Citation: 572 F. Supp. 684
• Parties: UNITED STATES of America, Plaintiff, v. BORDEN, INC., Defendant.
• Court: U.S. District Court — District of Massachusetts

572 F. Supp. 684

UNITED STATES of America, Plaintiff, v. BORDEN, INC., Defendant.

Civ. A. No. 83-1892-MA.

United States District Court, D. Massachusetts.

September 30, 1983.

William F. Weld, U.S. Atty., Ralph A. Child, Asst. U.S. Atty., Boston, Mass., Elizabeth Yu, Environmental Enforcement Section, Land and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., for plaintiff.

Joseph L. Kociubes, and Jane E. Serene, Bingham, Dana & Gould, Boston, Mass., for defendant.

MEMORANDUM AND ORDER

MAZZONE, District Judge.

The United States, at the request of the Administrator of the Environmental Protection Agency (Administrator), brought this action against Borden, Inc. (Borden) pursuant to Section 113(b) of the Clean Air Act (Act), 42 U.S.C. § 7401 et seq. The United States alleges that Borden, at its polyvinyl chloride plant in Leominster, Massachusetts, has released and continues to release to the atmosphere vinyl chloride, a hazardous air pollutant, in violation of Section 112(c) of the Act. The United States seeks civil penalties and injunctive relief. This action is before the Court on the defendant's motion to dismiss for failure to state a claim upon which relief can be granted. Borden filed a memorandum in support of this motion. The United States filed a memorandum in opposition, to which Borden filed a reply brief.

The statutory and factual background of this action is as follows. Section 112(b)(1) of the Act requires the Administrator to list hazardous air pollutants and establish emission standards for each. A "hazardous" air pollutant "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." Clean Air Act § 112(a)(1). Vinyl chloride has been implicated as the causal agent of angiosarcoma, a form of liver cancer, and other carcinogenic and non-carcinogenic disorders in persons with occupational exposure, and animals with experimental exposure, to it. Pursuant to his authority under Section 112(b)(1) of the Act, the Administrator identified vinyl chloride as a hazardous air pollutant and proposed regulations to limit discharges. 40 Fed.Reg. 59477 (December 24, 1975). The "National Emission Standard for Vinyl Chloride" was promulgated as a final regulation on October 21, 1976. 41 Fed.Reg. 46560, now codified at 40 C.F.R. § 61.60 et seq.

Vinyl chloride is principally used in the manufacture of polyvinyl chloride resins which, in turn, are used to produce plastic materials. It is chemically reacted with water and other substances under conditions of heat and pressure. Emissions of vinyl chloride gas into the atmosphere may occur at various points in polyvinyl chloride manufacturing; valves are placed at a number of locations to provide for gas escape under conditions of excessive pressure. The specific regulations that the United States seeks to enforce concern valve discharge:

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 determining the vinyl chloride loss, the action that was taken to prevent the discharge, and measures adopted to prevent future discharges.

40 C.F.R. § 61.65(a), and

(a) Reactor. The following requirements apply to reactors:

* * * * * *

(3) Manual vent valve discharge: Except 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 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 determining the vinyl chloride loss, the action that was taken to prevent the discharge, and measures adopted to prevent future discharges.

40 C.F.R. § 61.64(a)(3).

Section 112(c)(1)(B) of the Act provides that no hazardous air pollutant may be emitted from any stationary source in violation of a national emission standard. For violations of this section by an owner or operator of a major stationary source, Section 113(b) provides that the Administrator shall commence a civil action for a permanent injunction or a civil penalty of not more than $25,000 per day of violation, or both.

Congress amended the Act in 1977 by adding Section 112(e)(1)-(4). Pub.L. 95-95, § 110, 91 Stat. 703. These provisions authorize the Administrator to promulgate a "design, equipment, work practice, or operational standard" (work practice standard) where, in his judgment, "it is not feasible to prescribe or enforce an emission standard for control of a hazardous air pollutant."¹ Clean Air Act § 112(e)(1). In 1978, Congress gave the Administrator the authority to enforce work practice standards by adding Section 112(e)(5), which provides that any design, equipment, work practice, or operation standard "shall be treated as an emission standard for purposes of the provisions of this chapter."

The Act also limits judicial review of the Administrator's promulgation of emission standards: "A petition for review of action of the Administrator in promulgating ... any emission standard or requirement under section 112 of this title ... may be filed only in the United States Court of Appeals for the District of Columbia.... Any petition for review filed under this subsection shall be filed within sixty days from the date notice of such promulgation ... appears in the Federal Register...." Clean Air Act § 307(b)(1). The Act further precludes challenges to emission standards in enforcement proceedings: "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 proceedings for enforcement." Clean Air Act § 307(b)(2).

The United States alleges that Borden discharged vinyl chloride from relief valves at its Leominster, Massachusetts plant on four specified and many unspecified occasions since 1976, all in violation of the vinyl chloride relief valve regulations. The United States seeks civil penalties of $25,000 per day of violation, plus an injunction requiring Borden to cease its violations.

Defendant Borden does not deny that its Leominster plant is a "stationary source" subject to the Act's prohibition on emissions in violation of a national emission standard. Nor does Borden deny that it released vinyl chloride from relief valves in the amounts and on the occasions alleged in the United States' complaint. Borden does not dispute the allegation that these emissions were neither "emergency relief discharges" nor "emergency manual vent valve discharges." Instead, Borden contends that these regulations are not enforceable emission standards. Borden argues that they are actually work practice standards, promulgated in 1976 when the Administrator had authority only to promulgate emission standards. Since these regulations were not repromulgated following the 1977 and 1978 amendments to the Act, which authorized work practice standards and made them enforceable as "emission standards," Borden claims they are unenforceable as a matter of law. Accordingly, Borden moves to dismiss the plaintiff's complaint.

For purposes of the defendant's motion to dismiss, the complaint must be construed in the light most favorable to the plaintiff United States and its allegations must be taken as true. Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404 (1969).

The principal question before this Court is whether the regulations at issue are an enforceable emission standard. A second question raised by the United States is whether this action is precluded by Section 307(b)(2) of the Act. I address these questions seriatim.

I.

In support of its claim that the vinyl chloride relief valve regulations at issue are not enforceable emission standards, Borden relies primarily on 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). The "National Emission Standard for Asbestos" at issue in Adamo set forth specific procedures to be followed in connection with building demolitions, but did not by its terms limit emissions of asbestos occurring during demolition. Originally, the Administrator proposed a "no visible emissions" standard for asbestos, 36 Fed.Reg. 23242 (1971), but concluded "that the no visible emission requirement would prohibit repair or demolition in many situations, since it would be impracticable, if not impossible, to do such work without creating visible emissions."² 38 Fed.Reg. 8821 (1973). The Administrator "chose to regulate work practices only when it became clear he could not regulate emissions." 434 U.S. at 287, 98 S.Ct. at 574. The resulting "emission standard" provides, in pertinent part:

(i) Friable asbestos materials used to insulate or fireproof any boiler, pipe or load-supporting structural member, shall be wetted and removed from any building,

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