ON PETITION FOR REVIEW OF ADMINISTRATIVE ORDERS ISSUED BY THE ENVIRONMENTAL PROTECTION AGENCY ON JULY 2, 1979
Before Gibbons and Weis, Circuit Judges and Bechtle, District Judge.*fn*
The EPA issued orders against several chemical companies stating that they had discharged vinyl chloride in violation of regulations and directing compliance in the future. After the Hooker Chemical Company and Tenneco Chemicals, Inc. filed petitions for review, the agency withdrew the orders against those two companies, but reserved the right to take further enforcement action with respect to the emissions. The EPA then contended that the case had become moot. We reject that contention, but decline review because the matter is not ripe for adjudication.
Over a period of time beginning in January 1977 and extending through May 16, 1979, a number of relief valve discharges of vinyl chloride occurred at the Hooker Chemical Company plant in Burlington, New Jersey. This information was reported to the appropriate regional office of the EPA in accordance with the relevant regulation, 40 C.F.R. § 61.65(a) (1979). Finding that the discharges had violated § 112 of the Clean Air Act, 42 U.S.C. § 7412 (Supp. I 1977), Region II of the EPA issued an "order" on July 2, 1979. The order directed Hooker to take steps necessary to prevent further violations, and to comply with the provisions of 40 C.F.R. § 61.65(a), which prohibit vinyl chloride emissions in nonemergency situations.*fn1
Accompanying the order was a letter signed by the Acting Director of the Enforcement Division in Region II, based in New York City. After quoting the regulation, the letter stated in part:
"EPA construes the exception for emergency relief discharges narrowly.... (T)o be considered an emergency, a source must demonstrate that it could not reasonably have been expected to anticipate the discharge and then to prevent it or contain it. As a minimum, the source must demonstrate that the discharge could not have been prevented by implementing any of the following procedures."
The letter then listed such matters as employee training programs, proper inspections and maintenance, proper design and operation of process and control equipment, and installation and operation of all control equipment, which should be utilized to ensure compliance with the vinyl chloride standard.
The letter went on to advise: "The preamble to the proposed vinyl chloride standard (also) lists several measures a (facility) can reasonably be expected to take to prevent relief valve discharge. See 40 Fed.Reg. 59539 (December 24, 1975). These measures include, but are not limited to, venting vinyl chloride discharges to a gas holder during upset conditions and ultimately to a recovery system."
On August 30, 1979, Hooker petitioned this court for review of the EPA's order, and on October 5, the Acting Regional Administrator, referring to the order of July 2, 1976, notified Hooker that "(t)he above referenced order is hereby withdrawn." The withdrawal was accompanied by a letter from the Regional Director of the Enforcement Division, stating in part:
"EPA has no intention to seek judicial relief against Hooker for possible violations of this Order prior to the time of its withdrawal. However, in no event should this withdrawal be construed to relieve Hooker of liability for violations of the underlying regulatory provisions set forth at 40 CFR § 61.65(a). In fact, it is EPA's continuing belief that Hooker has violated the requirements of 40 CFR § 61.65(a). EPA will take appropriate enforcement measures necessary to remedy any such violations which have occurred at the referenced polyvinyl chloride plant."
Tenneco Chemicals received two similar orders and later withdrawals from the same regional office of the EPA. Tenneco filed a petition for review with the United States Court of Appeals for the Second Circuit, which then transferred the matter here. Other chemical firms received letters identical to that of July 2, 1979, but did not petition for review. These companies did not receive withdrawal notices.
Hooker and Tenneco assert that not until after the 1977 amendments to the Act was the agency given the power to establish design, equipment, work practice, and operational requirements. See Clean Air Act Amendments of 1977, Pub.L.No.95-95, § 110, 91 Stat. 703 (codified at 42 U.S.C. § 7412(e) (Supp. I 1977)). Before these amendments became effective, the EPA lacked authority to direct adherence to work practices as part of emission standards. Adamo Wrecking Co. v. United States, 434 U.S. 275, 98 S. Ct. 566, 54 L. Ed. 2d 538 (1978). Imposition of such requirements, although within the agency's power since 1977, requires notice and hearing procedures that the agency has not yet undertaken. Id.
As ground for appeal, Hooker and Tenneco contend that the EPA transmittal letter of July 2, 1979 requires the kind of equipment, design, and operational changes that could be imposed only after formal rule making proceedings. In effect, petitioners say the enforcement division of EPA is amending the regulations without following proper procedures. Moreover, Hooker asserts that as to the bulk polymerization ...