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United States v. Borden, Inc.

Citation: 14 ELR 20160
No. No. 83-1892-MA, 572 F. Supp. 684/19 ERC 2143/(D. Mass., 09/30/1983)

The court rules that the Environmental Protection Agency's (EPA's) Clean Air Act vinyl chloride emission regulations are valid emission standards, not work practice rules, and that § 307(b)(2) of the Act precludes challenging the validity of the regulations in a civil enforcement proceeding. EPA promulgated the vinyl chloride regulations under § 112 of the Act in 1976, before Congress amended the Act to allow work practice rules. The court rules that the regulations are not work practice rules even though they allow discharges only in unavoidable emergencies. The legislative history of the Act indicates that EPA may require zero discharge emission standards. By allowing discharges in unavoidable emergencies, EPA is not prescribing prevention practices, but rather is codifying an impossibility defense. In so ruling, the court expressly disagrees with the district court ruling in United States v. Ethyl Corp., 13 ELR 20990, and distinguishes the Supreme Court ruling in Adamo Wrecking Co. v. United States, 8 ELR 20171. Further, the court rules that under § 307(b)(2) of the Act, Borden could only have challenged the regulations within 60 days of promulgation. The court holds that the judicially created Adamo exception to § 307 only applies to criminal enforcement actions, and that no due process issue arises since Borden had actual notice of the promulgation of the regulations.

Counsel for Plaintiff
Ralph A. Child; William F. Weld, U.S. Attorney
1107 J. W. McCormack Fed. Bldg., Boston MA 02109
(617)223-3181

Elizabeth Yu
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202)633-2750

Counsel for Defendant
Joseph L. Kociubes, Jane E. Serene
Bingham, Dana & Bould
15th Floor, 100 Federal St., Boston MA 02110
(617)357-9300