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United States v. Tenneco Chems., Inc.

ELR Citation: 13 ELR 20189
Nos. No. 80-4141, (D.N.J., 07/06/1981)

The court rules that defendant is barred by §307(b)(2) of the Clean Air Act from attacking the constitutionality of the emission standard for vinyl chloride in an Environmental Protection Agency (EPA) enforcement proceeding. The court finds that defendant participated in the rulemaking that culminated in the promulgation of the standard. Therefore, it concludes that defendant could have raised its contention that the standard was unconstitutionally vague in a judicial review proceeding under §307(b)(2). Defendant's failure to do so within the 60-day period forecloses review in an enforcement proceeding. The court further holds that $307(b)(2) does not violate defendant's due process rights.

The court also rejects the equitable defenses of laches and waiver since defendant did not assert any harm from delay and because the public interest could be adversely affected if these defenses were to bar the instant enforcement proceeding. Moreover, the court declines to strike the defense of estoppel because defendant's allegations concerning EPA inspections of its facility are sufficient to make out a claim of detrimental reliance, given the early stage of the litigation. Finally, the court grants a protective order against deposition of a high EPA official, finding that written interrogatories would suffice to obtain the needed information.

Counsel for Plaintiff
James A. Plaisted, Ass't U.S. Attorney
Fed. Bldg., 970 Broad St., Rm. 502, Newark NJ 07102
(201) 645-2155

Counsel for Defendant
Bruce I. Goldstein
Saiber, Schlesinger, Satz & Goldstein
Gateway I, Newark NJ 07102
(201) 622-3333