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Hooker Chem. Co., Ruco Div. v. EPA

Citation: 11 ELR 20084
No. Nos. 79-2194, -2567, 642 F.2d 48/15 ERC 1721/(3d Cir., 02/23/1981)

The Third Circuit Court of Appeals declines to rule upon the legality of compliance orders issued by the Environmental Protection Agency (EPA) directing that petitioners prevent future releases of vinyl chloride from their industrial facilities, concluding that the issues are not ripe for review. The court first rejects EPA's contention that the case is moot. Even though the compliance orders were withdrawn by EPA following the filing of the instant litigation, the Agency adheres to its interpretation of the relevant regulations and § 112 of the Clean Air Act and has retained its right to take future enforcement actions against petitioners for the discharges in question. Thus, the controversy between the parties remains live. Nevertheless, the court finds that gaps in the factual record make the case unripe. Because EPA (1) is continuing to investigate the discharges, (2) has instituted a proceeding in district court involving the same circumstances, and (3) has not ordered petitioners to undertake specific compliance measures, petitioners can show neither that they will suffer hardship from denial of review nor that the issue before the court is purely legal. Therefore, the case is not ripe and the petition is denied.

Counsel for Petitioners
John C. Murphy Jr., Charles F. Lettow, Janet L. Weller
Cleary, Gottlieb, Steen & Hamilton
1250 Connecticut Ave. NW, Washington DC 20036
(202) 828-3000

David Giannotti
P.O. Box 4289, Houston TX 77210
(713) 977-5265

Allan J. Topol, Edward R. Mackiewicz, Steven S. Rosenthal
Covington & Burling
888 16th St. NW, Washington DC 20006
(202) 452-6000

Counsel for Respondents
Nancy L. Long, Donald W. Stever, James W. Moorman
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2280

Michelle Corash, Todd Joseph, Jane Axelrad
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Weis, J., joined by Gibbons and Bechtle,* JJ.