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Clean Air Act Compliance / Enforcement Guidance Manual - Chapter
Seven
CHAPTER SEVEN
Civil Judicial Enforcement
Contents Page.
1 Introduction 7-1.
2 Pre-Trial Stage 7-3.
Post-Conference Decision 7-3.
Contents of a Litigation Report 7-3.
Interrelationship of Referral Process, Litigation, and
Negotiation 7-8.
Filing the Complaint 7-8.
3 Injunctive and Penalty Actions 7-11.
Violations for Which Judicial Relief May Be Granted 7-11.
Injunctive Relief 7-12.
Penalties 7-13.
Issues That Are Not Reviewable at Trial 7-14.
Settlements 7-14.
CAA Compliance/Enforcement 7-i Guidance Manual 1986
Chapter Seven
1 Introduction
In Chapter Five, we noted that the Act authorizes EPA to petition a
federal district court to order a violating source to comply with the Act
and to pay civil penalties to redress the period of noncompliance. Chapter
Six discussed the beginning stages in the development of the enforcement
process, particularly the issuance of the Notice of Violation, and
the conference with the violating source. In this chapter, we will pick up
the enforcement process after the conference with the source and point out
the basic issues involved in preparing for, and eventually resolving, the
civil judicial action. The chapter concentrates on the steps that precede
the filing of the civil complaint in federal district court. The filing of
the complaint and subsequent steps are primarily the responsibility of
the Department of Justice.
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Chapter Seven
2 Pre-Trial Stage
Post-Conference Decision
As soon as possible after the conference, the Regional Office attorney
and engineer should discuss what transpired at the conference. The accuracy
of the engineer's report should be reviewed if the source offered
conflicting information, and the strengths or weaknesses of the government's
case should be reevaluated in light of the source's theory of the case or
other information that may have come to light.
Assuming that a federal district court order is the desirable
enforcement response, the attorney and engineer must develop a Litigation
Report that will serve as the basis for obtaining the signatures of the
appropriate EPA officials for eventual referral to the Department of Justice
and the United States Attorney. The litigation report should be prepared
for referral to Headquarters or for direct referral within 30 days after
receipt of all necessary information from the company and from the state or
local authorities.
Contents of a Litigation Report
The Litigation Report should contain the following information:
o A synopsis of the case;
o The statutory basis of the referral;
o A description of the defendant;
o A description of the violations and their environmental
consequences;
o A discussion of the applicable compliance test method and whether it
was correctly applied;
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o A description of the enforcement history of the defendant and
pre-referral negotiations;
o A description of the injunctive relief to be sought;
o A discussion of proposed civil penalties;
o A discussion of major issues, including issues of national or
precedential significance;
o A discussion of the significance of the referral to the Agency's
compliance priorities and strategies; and
o A proposed litigation strategy.
In addition, the Litigation Report should contain attachments which
include,at a minimum, the following:
o A draft complaint;
o Documentation of the violations, such as compliance test reports or
responses to Section 114 letters;
o A copy of the notice(s) of violation;
o A copy of the Penalty Policy Worksheet and BEN computer printout;
o Copies of significant correspondence between EPA, the defendant
and/or the state; and
o A case plan.
Other attachments may be appropriate:
o Draft discovery;
o A draft consent decree;
o Draft motions;
o A diagram of the facility;
o A Dun and Bradstreet report or other papers relating to the
defendant's corporate status or financial status;
o A copy of a pending SIP revision; and
o A copy of the operating permit.
The Litigation Report should follow the format found in the Model Litigation
Report Outline. The Model Litigation Report Guidance contains a more
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detailed description of the items that should be included in the Litigation
Report. (See General Enforcement Policy Compendium at Tab GM-48).
Complaints
Complaints are governed by the General Rules of Pleading established by Rule
8 of the Federal Rules of Civil Procedure. Complaints must state a cause of
action (i.e., the complaint must allege facts that constitute a violation of
the Act remediable pursuant to Sections 113(b), 167, or 303).
Complaints are filed on behalf of the United States of America.
Consequently, the complaint should not be styled "Environmental Protection
Agency v. Polluter" or "William D. Ruckelshaus, Administrator v. Polluter."
The complaint must also state the grounds upon which the court's
jurisdiction lies. Usually, EPA asserts federal court jurisdiction under
Section 113(b), 167, or 303 of the Clean Air Act; 28 U.S.C. Section 1331(the
"federal question" jurisdiction when the amount in controversy exceeds
$10,000); 28 U.S.C. Section 1337 (a proceeding arising under an act of
Congress regulating commerce); 28 U.S.C. Section 1345 (the United States as
a plaintiff); and 28 U.S.C. Section 1355 (when the government seeks a civil
penalty).
Complaints must also contain a demand for relief (i.e., an injunctive order
aimed at requiring compliance or an order to pay civil penalties, or both).
The Environmental Enforcement Section of the Land and Natural Resources
Division of the Department of Justice has published model pleadings for five
categories of Clean Air Act violations: SIP violations, NSPS violations,
NESHAPS violations, PSD violations, and mobile source violations. These
model pleadings include model complaints.
Description of Evidence
The Litigation Report should contain a detailed description of the evidence
supporting the allegation of violation. Where the government alleges
violations of opacity requirements, copies of the smoke reader's charts or
copies of the summaries of strip charts from continuous emission monitors
(where CEM is the compliance test method) should be included. Where the
government alleges violations of mass emission limits, the emission factor,
process weight, or other mathematical calculations should be included in the
report. The report should contain a description of the applicable
compliance test method and whether it was correctly applied. (See CAA Policy
Compendium, I. General, Tab K).
Enforcement History of Defendant and Pre-Referral Negotiations
This section of the Litigation Report should describe the history of EPA and
state contacts with the source, beginning with the inspection and continuing
through the conference and up to the time of referral. The report should
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indicate whether the source admits the violation or not; whether the source
has offered to take any action to abate the violation and what EPA's
evaluation of such offer is; and whether the obstacle to settlement is based
on the source's claim of compliance, the cost of compliance, the
expeditiousness of the compliance schedule, the amount of penalties, or
other factors.
The report should also document whether any administrative action has been
taken or is being taken concurrently with the development of the litigation
effort. For example, the source may have applied for a DCO under Section
113(d), which, if granted, would have the effect of extending the compliance
deadline of the SIP for a specific time period. A Section 120 proceeding
may be ongoing, which may or may not effectively force the source to
comply; or, the state may be entertaining a "bubble" petition for a revision
to the SIP that would ultimately affect EPA's claim for relief.
Because it is EPA policy to defer to state authorities when it is taking
appropriate action to resolve noncompliance, it is important for the
litigation report to set forth a history of state involvement with the
source. The report should describe whatever the state has done to bring the
source into compliance and why the EPA deems the state activity inadequate
to resolve the situation appropriately.
Defenses
Discussions with the source at the conference, or prior history of
interaction with another unit of the same company or from the same
industry,may be instructive regarding the defenses the source may offer to
the court to rebut allegations of liability. The source may argue, for
example, that the regulation in question was not legally adopted, the
regulation is not applicable, the performance test was not properly
conducted, the government is somehow at fault, etc. When a legal or factual
defense is anticipated,the Litigation Report should describe how the
government intends to rebut the defense. The description need not be as
detailed as a brief for the court would be, but it should cite applicable
case law or statutory authority in a manner sufficient to permit evaluation
of both sides of the argument.
Precedential Issues
Sometimes the conference discussions might indicate that the source intends
to argue, or EPA will be forced to assert, a legal point that will require
the court to decide an issue of first impression. An issue of first
impression is one where no court has ruled on the meaning of a word or
phrase, or the applicability of a provision to a certain activity or set of
circumstances. In such a case, the report should attempt to describe what
case law or statutory authorities (e.g., the Clean Water Act) favor EPA's
case and what authorities to the contrary the source is likely to cite. The
report should also attempt to weigh the merits of both arguments.
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Environmental Harm
The report should assess the severity of environmental harm caused by the
noncompliance. The report should indicate the attainment status of the air
quality control region in which the source is located and whether the source
impacts any other air quality control regions. The report should describe
the loadings into the atmosphere of pollutants from the source operating in
noncompliance and compare them to loadings that would result from the source
in compliance. If possible, the report should also describe the impact of
the loadings on ambient concentrations, visibility, or other parameters.
Description of Pollution Control Remedy
The report should describe in detail the specific air pollution control
project or program that is necessary to remedy the violation. If the remedy
involves the installation of control equipment, the report should include a
description and, where possible, a schematic drawing of the controls. The
report should include an assessment of capital and operation and maintenance
costs associated with the controls, and a description of the time involved
in putting the remedy into effect. The report should also provide a summary
of industry experiences with similar control techniques.
Civil Penalty Amount
The report should state what the civil penalty figure is, calculated on the
basis of the number of violations, multiplied by the number of days of
violation, multiplied by $25,000. This number represents the maximum
statutory penalty possible. Only rarely would a court award such a
potentially high penalty, although the complaint almost invariably demands
that amount.
More importantly, the report should include a civil penalty figure that
represents the minimum penalty that would be acceptable in settlement of the
case. That number is determined on the basis of the Policy on Civil
Penalties (see General Enforcement Policy Compendium, document GM-12) and
the Clean Air Act Stationary Source Civil Penalty Policy (see CAA Policy
Compendium, Section 113, Tab Y). The minimum acceptable figure is usually
substantially lower than the maximum statutory amount. Therefore, this sum
must be guarded in the strictest confidence by EPA and DOJ negotiators to
permit the potential for maximum penalties to serve as an impetus for the
source to settle.
An Enforceable Consent Decree
The report may include a draft consent decree designed to secure compliance
as expeditiously as practicable. If the source has agreed to a settlement,
the decree accompanying the report should be the most recent draft of the
agreed upon settlement. If the source has not agreed to settle, the draft
decree should contain schedules and other agreements
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most favorable to the Agency because the draft decree will represent the
starting point for negotiations. In such a case, it is fundamental to a
successful negotiation that the initial proposal seek substantially more
than what would eventually be deemed acceptable to EPA.
The contents of a consent decree ultimately depend upon the underlying
violation and the circumstances under which they will be remedied. Thus, a
truly model decree is difficult, if not impossible, to prescribe. However,
there are certain provisions of consent decrees that are often employed. It
is recommended that General Policy Compendium documents GM-17 and GM-27 be
reviewed when preparing consent decrees. In addition, it is recommended
that Regional Office attorneys consult consent decrees entered in other
similar cases to discover appropriate provisions and language for inclusion
in settlement agreements.
Interrelationship of Referral Process, Litigation, and Negotiation
Concurrently with the preparation of the Litigation Report, the referral
process, and the pendency of litigation, negotiations usually are conducted
with the violator aimed at settling the case. The vast majority of Clean
Air Act cases are settled by negotiation. That fact, however, should not be
assumed to apply. Litigation Reports should be prepared and negotiations
should be conducted on the assumption that the case will eventually go to
trial and will require proof of each element of violation, as well as
defenses of the civil penalty and pollution control demands.
As we noted in Chapter Six, negotiations with the source usually begin at
the conference that follows the NOV. It is recommended that negotiations be
conducted regularly to demonstrate the government's resolve to pursue the
case and to reach a settlement as soon as possible. Once the source is
represented by counsel, it is required that any communications by EPA
attorneys with the source be conducted through the counsel.
Before beginning settlement negotiations, the EPA team must agree upon what
constitutes an acceptable settlement. This means that the team must know
what pollution control remedies are required, the schedule for compliance,
the penalty figure, and any other source-specific requirements either
necessary or desirable to abate the pollution and to monitor compliance.
Filing the Complaint
The civil action commences with the filing of a complaint (Federal Rules of
Civil Procedure, Rule 3). The complaint may be filed in the U.S. district
court in which the violation occurred or in which the defendant resides or
does business.
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The EPA negotiating team should press its counterparts in the Department of
Justice and the United States Attorney's office to file the complaint as
soon as possible. A filed complaint serves to reinforce the notion in the
violator that EPA views the situation seriously. Experience indicates that
a filed complaint increases the chances, the quality, and the timing of
settlement. Rapid filing improves chances of settlement simply because the
source will not be likely to expect that EPA will "forget about the whole
thing" once the government has invoked a court's jurisdiction. In
addition, once a complaint has been filed, the source is potentially liable
for payment of penalties, and must report the potential liability to
shareholders and the Securities and Exchange Commission in its "10-K" form.
Because payment of penalties is a nonproductive use of a company's funds,
shareholder pressure may force the company's officers to settle promptly.
Finally, a company in federal court for air pollution problems faces a
public relations problem that may be minimized, or even negated, by a quick
settlement.
A filed complaint can improve the quality and timing of a settlement because
a source must assume the possibility of a less palatable resolution from a
trial than from a settlement. Once the complaint is filed, the spectre of
a trial really arises. Most pollution law violators are probably aware that
judges and juries are likely to take a dim view of defendants alleged to be
contributing to environmental degradation. Thus, the impetus to settle, and
settle quickly, is enhanced by a filed complaint.
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Chapter Seven
3 Injunctive and Penalty Actions
With the filing of the complaint, the Department of Justice formally begins
the civil action on behalf of the United States. The conduct of the trial
is almost invariably the responsibility of DOJ.
Violations for Which Judicial Relief May Be Granted
Section 113(b) provides that a federal district court may grant a temporary
or permanent injunction and order the payment of civil penalties for 11
categories of violations applicable to stationary sources:
o Violation of, and failure or refusal to comply with, a Section
113(a) immediate compliance order;
o SIP violation during any period of federally assumed enforcement;
o SIP violation occurring 31 or more days after receipt of the NOV
notifying the source that it is in violation of the SIP;
o Violation of Section 111(e) pertaining to New Source Performance
Standards;
o Violation of Section 112(c) pertaining to National Emission
Standards for Hazardous Air Pollutants;
o Violation of a Section 113(d) delayed compliance order;
o Violation of a Section 119 nonferrous smelter order;
o Violation of regulations under Part B (relating to ozone);
o Failure or refusal to comply with any Section 114 requirement;
o Attempt to construct or modify a major source in any nonattainment
area about which the Administrator has made a finding under Section
113(a)(5); and
o Failure to pay a Section 120 noncompliance penalty.
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In addition, Section 167 provides for civil injunctive relief for certain
PSD violations. Note that Section 167 does not provide for civil penalties.
In actions requiring an injunction and penalties to redress PSD violations,
both Sections 167 and 113(b) should be used. (See Policy Compendium,
Section 167, Tab A).
Section 303 also provides for injunctive and penalty relief in situations
causing or contributing to an imminent and substantial endangerment to
public health. (See Policy Compendium, Section 303, Tab A).
Injunctive Relief
There are three types of injunctive relief available from a federal district
court--temporary restraining orders, preliminary injunctions, and permanent
injunctions. Petitions for injunctive relief are addressed to the
discretion of the court (i.e., the remedy is not automatically ordered by a
court).
A quotation from Wright and Miller's Federal Practice and Procedure, Volume
11, Section 2941, p. 361, aptly describes the three forms of injunctive
relief as follows:
A temporary restraining order typically is sought and
issued on an ex parte basis and operates to prevent
immediate irreparable injury until a hearing can be
held to determine the need for a preliminary
injunction. A preliminary injunction is effective pendente
lite until a decision has been reached at a trial on
the merits. In some actions all three types of relief
may be ordered by the court.
Temporary Restraining Orders
A temporary restraining order (TRO) is an order of a court that prohibits or
limits specified acts of a defendant. The TRO operates for no more than ten
days, unless extended for good cause for another ten-day period, or a longer
period if the party against whom the order is directed consents to the
longer period. (See Federal Rules of Civil Procedure, Rule 65(b)).
To obtain a TRO, EPA must prove that it clearly appears from specific facts
shown by affidavit or by the verified complaint that immediate and
irreparable injury, loss, or damage will result before the adverse party
(the source) can be heard in opposition. We have emphasized the last line
because the fact that a TRO can be issued by a court without the source
having been present or heard ("ex parte") is the key feature of TROs that
distinguish them from other court orders. EPA must certify in writing the
efforts, if any, that have been made to give notice of the hearing.
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When a TRO has been granted without notice, the court must set a date for a
hearing on a preliminary injunction at the earliest possible time. The
source may seek to dissolve the TRO by giving EPA two days' notice and
persuading the court at the hearing either that the underlying alleged
violation is not occurring or that immediate, irreparable injury, loss, or
damage will not result.
Preliminary Injunctions
A preliminary injunction is like a TRO with two significant exceptions.
First, a preliminary injunction may not be issued without notice to the
source. Second, a preliminary injunction is effective for the time period
during which the court decides (pendente lite) whether or not to issue a
permanent injunction. Put another way, the preliminary injunction serves to
freeze the situation while the court decides what to do.
Permanent Injunctions
A permanent injunction is a final order of a court that restrains or
requires certain actions by the defendant. The permanent injunction is
issued after the court has heard all arguments and tried all facts necessary
to reach a decision on the merits of the case.
Penalties
The successful resolution of a Clean Air Act civil judicial action almost
always involves the payment of civil penalty by the defendant. The
appropriate penalty for most cases is derived from the CAA Stationary Source
Civil Penalty Policy (see CAA Policy Compendium, Section 113, Tab Y). In
addition, the following policies, which apply to specific penalty
situations, are located in appendices to the CAA Civil Penalty Policy:
Appendix I: Penalty Policy for Violations of Permit Requirements
Appendix II: Vinyl Chloride Civil Penalty Policy
Appendix III: Asbestos Demolition and Renovation Penalty
Appendix IV: Penalty Policy as Applied to Stationary Sources of
Volatile Organic Compounds Where Reformulation to Low
Solvent Technology is the Applicable Method of
Compliance
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Issues That Are Not Reviewable at Trial
Section 307(b)(2) provides:
Action of the Administrator with respect to which review
could have been obtained (under Section 307(b)(1)) shall
not be subject to judicial review in civil or criminal
proceedings for enforcement.
The effect of this provision is to limit severely the number and types of
defenses that could be raised by a defendant in an enforcement proceeding.
Generally, Section 307(b)(1) provides for review of rules or orders
promulgated pursuant to Section 110, 111, 112, 113(a), 113(d), 119, 120, or
any other final agency action of the Administrator, within 60 days of
publication of the rule or order in the Federal Register. Jurisdiction lies
in the U.S. Court of Appeals for the appropriate circuit for regionally
applicable rules or orders, or in the D.C. Circuit for nationally applicable
rules or orders. After the 60-day period has expired, the rule or order may
not be challenged.
Thus, in an action to enforce the emission limitation established by an
NSPS, the source may not challenge the rule as being inapplicable due to a
defect in the rulemaking, such as the failure of the Agency to consider cost
in establishing the standard. In other words, although the source may
defend against the enforcement action on the grounds that the standard does
not apply to the source (e.g., the standard applies only to sources larger
than "x" and the source is actually smaller than "x"), it may not challenge
the standard itself (e.g., the standard should not apply to sources larger
than"x").
Settlements
The vast majority of Clean Air Act cases are settled before the court
renders a decision. The settlement agreement is usually embodied in a
consent decree. EPA General Enforcement Policy Manual GM-27 sets forth
generally applicable principles for federal district court orders and GM-17
sets forth model language for consent decrees. In addition to that
guidance, it is recommended that the attorney drafting the decree review
other decrees that have been successful in bringing about compliance.
There are two very important EPA policies specifically applicable to
settlements with sources violating SIP requirements in primary non
attainment areas subsequent to December 31, 1982. Those documents, which
are included in the Policy Compendium to this manual at Section 113, Tabs R
and S, establish specific requirements relating to the form and content of
decrees embodying post-1982 SIP enforcement settlements.
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