ELR Citation: ELR 20589
No(s). s. 83-3537, -3656 (5th Cir. Jun 3, 1985)

The court holds that in a civil enforcement proceeding under the Clean Air Act, the district court lacks jurisdiction to determine whether the Environmental Protection Agency (EPA) properly classified §112 hazardous air pollutant regulations as emission standards, and, alternatively, that the regulations, which allow no discharge, were properly so classified. The court first notes that under §307(b) of the Act, an emission standard is reviewable only by the D.C. Court of Appeals and within sixty days of the Administrator's action. The court rejects the district court's holding that it nevertheless had jurisdiction to review the EPA's classification of vinyl chloride and polyvinyl chloride regulations as emission standards. The court distinguishes the Supreme Court's decision in Adamo Wrecking Co. v. United States, 8 ELR 20171, allowing criminal defendants to challenge such a classification, because the Supreme Court expressly based its decision on the added severity of criminal prosecutions, the fact that Congress did not clearly intended that §307(b) should apply, and the rule that ambiguity in a statute should be resolved in favor of a criminal defendant. The court then holds that even if the district court had correctly exercised jurisdiction, it holding that the regulation was a work practice regulation and not an emission standard was erroneous. The court holds that the Administrator's characterization of the numerical "no discharge" regulations as emission standards was reasonable.

Counsel for Appellant
Anne Almy
Justice Department
Land and Natural Resources Division, Washington DC 20530
(202) 633-4427

Counsel for Appellees
F. Walter Conrad Jr.
3001 Shell Plaza, Houston TX 77002
(713) 229-1234

Steven S. Livingston
3030 1st City Center, Dallas TX 75201
(214) 969-1700

Before CLARK, Chief Judge, GOLDBERG and RUBIN, Circuit Judges.