CLEAN AIR ACT ENFORCEMENT IN WESTERN STATES AND INDIAN COUNTRY
| Jurisdiction | United States |
(Nov 2007)
CLEAN AIR ACT ENFORCEMENT IN WESTERN STATES AND INDIAN COUNTRY
Davis Graham & Stubbs LLP
Denver, Colorado
I. Introduction.
Like most environmental statutes, the Clean Air Act ("CAA" or the "Act") is enforced primarily by states and local governments that issue permits, monitor compliance, and conduct the majority of inspections in the exercise of their EPA-delegated CAA authority, and under their own statutes and ordinances. The federal government, primarily through EPA, has authority to review state actions, and to "over file" when necessary. While differences in state air quality laws and programs exist, they all must cover the basic requirements of the CAA in order to be delegated authority to administer the Act. In light of this, we review CAA enforcement with a focus on federal requirements that are reflected in varying ways by numerous state air quality statutes and their respective implementing regulations.
The Act also provides for citizen suits against persons alleged to have violated the Act for permits issued pursuant to the Act, and against EPA for failure to enforce the Act, i.e., failure to perform an action that is not discretionary under the Act. This latter citizen suit authority is most often used to compel the development of regulations required by statute.
The 1990 Amendments to the Clean Air Act strengthened a number of enforcement provisions. Section 113 of the Act establishes federal authority to issue agency and court orders requiring compliance, and to impose penalties for violations of the Act. Section 114 authorizes EPA to require sources to submit reports, monitor emissions, and certify compliance with the Act's requirements, and also authorizes EPA inspections to determine a facility is in compliance with permit requirements and other requirements of the Act. The 1990 Amendments elevated penalties for some violations from misdemeanors to felonies, and gave authority to EPA to assess administrative penalties.
II. State Enforcement.
Every SIP is required to include an enforcement program to be administered by the state. States are permitted to impose more stringent standards or control subjects not covered by the CAA. § 116, and EPA may also delegate its enforcement authority under § 114 to the states.
Additionally, states are required to develop their own programs for monitoring, reporting, and data gathering as a part of their SIPs. Data submitted pursuant to these programs is made available to the public, as well.
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Operators and their counsel should be familiar with the provisions of state enabling legislation which is a prerequisite to their being delegated authority by EPA to enforce the Clean Air Act within their jurisdictional boundaries. See, e.g., Colorado Air Pollution Prevention and Tribal Control Act, Colo. Rev. Stat. §§ 25-7-101 through 1309 (2007).
Most state environmental regulatory agencies have adopted regulations which govern their uniform enforcement of the Clean Air Act, in order to obtain delegated authority and meet SIP requirements under the Act. These agencies also have developed guidance documents which serve to make their enforcement decisions and proceedings more uniform, and to conform to the federal Clean Air Act's penalty and injunctive relief requirements, among other things. See, e.g., Compliance Assurance and Mutual Settlement Agreement Program, Procedures and Guidelines Handbook, Stationary Source Program, Air Pollution Control Division, Colorado Department of Public Health and Environment (1998-99). These regulations and guidelines are typically available for download via regulatory agency websites.
III. General Enforcement Provisions Following the 1990 CAA Amendments.
The 1990 CAA amendments enhanced EPA's enforcement power by increasing EPA's ability to obtain information, among other things. Section 114(a)(3) may require owners and operators of sources to identify the standards to which they are subject and to provide certification that they are complying with the standards, as is described more specifically below. And Section 307(a), which deals with administrative enforcement subpoenas, was amended to make compliance information subject to the subpoena power.
Section 113 penalties can be applied from the date of the violation. EPA has the authority to impose administrative penalties of up to $25,000 per day, with a cap of $200,000. Prior to penalties being imposed, there must be an opportunity for a hearing on the record that meets the requirements of the Administrative Procedures Act ("APA").
EPA has more authority to deal with minor violations and can issue penalties up to $5,000 per day for minor violations. The agency need only give an opportunity for an informal hearing with respect to allegations of such minor violations.
Following the 1990 CAA Amendments, sanctions also became stricter. Felony sanctions are authorized and a doubling of sanctions for repeat offenders is permitted. Under § 113(a) a one-day SIP violation may be the subject of EPA response (30-day notice still required). Moreover, penalties can be applied to all violations including ones that predate the notice of violations. Section 113(b) states that statutory penalties apply per day for each violation. EPA may also establish violations with any credible evidence ("ACE"). Finally, a violator may have to prove when the violation has ended.
IV. Federal Administrative Enforcement and Civil Enforcement.
A. Federal Enforcement Generally: Section 113 provides for federally assumed enforcement of programs delegated to a state. If the administrator finds widespread violation of an applicable SIP or an approved permit program, notice to the state must be given. Thirty days after the notice of SIP violation or 90 days
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after notice of permit program violations, EPA may take over the state program. Until the state shows EPA that it will enforce the SIP or permit program, the EPA will enforce the requirements of the CAA.
B. Informal Enforcement: This includes telephone calls, on-site visits with verbal notice that a violator is responsible for compliance, and warning letters to begin enforcement attempts.
C. Notices of Violation ("NOVs"): Section 113(a)(1) NOVs are formal warning letters that must be issued 30 days before enforcement actions can be taken for violations of an SIP or a permit. Notice must be given to both the source and the state where the violation occurred. After 30 days, EPA may take further administrative action (see Administrative enforcement, below).
The sending of a NOV is not a final agency action because it may or may not be followed with further administrative action; thus it cannot be appealed under § 307. It may, however, be used as a defense in a subsequent enforcement action. NOTE: An NOV is not a prerequisite for bringing enforcement actions under other CAA violations.
D. Administrative Compliance Orders:
1. Must state a specified deadline for compliance that is not more than one year from issuance and that is not renewable.
2. May be issued if EPA finds there is a:
a. Violation by any person of any requirement or prohibition of an applicable implementation plan or permit;
b. Violation by any person of any requirement under Subchapter I, CAA § 303, Subchapters IV, V, or VI of the CAA, including a requirement of any rule, plan, order, waiver, or permit promulgated, issued, or approved under such provision, or
c. Failure by a state agency to comply with any requirement of the CAA regarding construction of new sources or modification of existing sources.
3. Not effective until the recipient has been given the opportunity to confer with EPA. EPA may begin a civil action in federal district court pursuant to § 113(b) to enforce a compliance order.
4. The Tenth Circuit has held that pre-enforcement review of administrative compliance orders is not permitted.
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E. Administrative Field Citations:
1. EPA can deal with minor violations by assessing civil penalties not to exceed $5,000 per day of violation. Minor violations are generally viewed as violations uncovered during an inspection or for routine violations of reporting or recordkeeping requirements. A person receiving a field citation may request a hearing. If not requested, then the penalty becomes final.
F. Administrative Civil Penalties:
1. Section 113 provides civil penalties that apply to virtually all violations of the CAA, except for those dealing with mobile sources.
2. EPA may impose an administrative penalty order if it finds, "on the basis of any available information," that "any person" has:
a. Violated any requirement or prohibition of an applicable implementation plan;
b. Violated any requirement . . . or prohibition of Subchapters I, III, IV, V, or VI including but not limited to, a requirement or prohibition of any rule, order, waiver, permit, or plan promulgated, issued, or approved under the CAA; or
c. Attempted to construct or modify a major stationary source in any area prohibited from doing so due to a finding under § 113(a)(5) that the state has failed to implement the CAA's NSR requirements.
3. EPA may issue an administrative order imposing civil penalties of up to $25,000 per day of violation. The total penalty is capped at $200,000.
4. Administrative penalty orders may only be made after an opportunity for a hearing in the record, in accord with APA.
5. Judicial Review of Administrative penalties:
a. Section 113(d)(4) allows for judicial review if it is final under 113(d)(2) or rendered under 113(d)(3).
b. One seeking review must do so in a federal district court with venue within 30 days of the order being final.
...c. The court may remand or set aside the order if there is no substantial evidence on the
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