Chapter 11. Enforcement

Theodore L. Garrett and Sonya D. Winner

Editors' Summary: This Article is the third in a three-part series on the Clean Air Act and the 1990 amendments. The authors analyze the new permit program mandated by the 1990 amendments, which requires the creation of a state-administered permit program. The authors also analyze the enforcement mechanisms available under the Clean Air Act that are applicable to stationary sources, and the administrative procedures and judicial review provided for in the Act. The authors analyze the Act's new provisions concerning chemicals that destroy stratospheric ozone, and the new requirements for phasing out the production and consumption of ozone-depleting substances. Finally, the authors explore the legislative history of the 1990 amendments, identifying where possible the sources of statutory text, amendments to that text, and analysis of the various pieces of the legislative history.

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The Clean Air Act provides a variety of mechanisms for enforcing the statutory and regulatory requirements concerning stationary sources of regulated emissions.¹ Enforcement authority is provided to the U.S. Environmental Protection Agency (EPA) and, for most major regulatory programs, to the states. Citizens are also given broad opportunities to enforce — or to obtain enforcement of — the statute and the regulations promulgated under it. These enforcement powers are supported by extensive statutory requirements governing inspection, monitoring, and reporting.

I. Federal Administrative and Civil Enforcement

A. Notices of Violation

EPA has the primary responsibility for enforcement actions at the federal level.² When enforcement involves an alleged violation of a state implementation plan (SIP) or a permit, the Agency must first issue a notice of violation to both the source and the state.³ The notice is usually issued by the appropriate EPA regional office. Thirty days after the notice is issued,⁴ EPA may (1) issue an administrative order, (2) file a civil action under § 113(b) of the Act, or (3) initiate a proceeding for the collection of administrative penalties under § 113 and/or § 120.⁵

The statute provides that EPA must issue a notice of violation when it "finds" that a SIP requirement has been violated.⁶ Judicial authority has split over whether EPA has a nondiscretionary duty to make a finding when the Agency receives information suggesting that a violation exists.⁷ However, a notice of violation is not a final order subject to judicial review,⁸ and EPA has discretion to determine what, if any, further action to take following the issuance of a notice.⁹

B. Administrative Orders

Section 113(a)(1) authorizes the Agency to issue administrative orders against "any person [that] has violated or is in violation of any requirement or prohibition of an applicable implementation plan or permit," requiring that person to come into compliance.¹⁰ If the recipient of the order fails to comply, EPA may enforce the order through a civil action under § 113(b). Administrative orders may also be issued against persons (including corporations) that violate new source performance standards (NSPS), standards governing hazardous emissions, permit requirements, or requirements relating to acid rain.¹¹ If the Agency finds that a state is not complying with any requirement of the Act concerning the construction of new sources or modifications of existing sources, it may also issue an administrative order prohibiting the construction or modification of major stationary sources within the affected areas.¹²

An administrative order to a noncomplying source may not take effect until the recipient has been given an opportunity to confer with EPA about the alleged violation.¹³ The order must require compliance "as expeditiously as practicable, but in no event longer than one year" from the date of the order. Issuance of such an order does not preclude EPA or the state from pursuing other remedies under the Act, including civil or administrative penalties.

In addition to its general authority to issue administrative orders to sources that are out of compliance with statutory or regulatory requirements, EPA is specifically authorized under § 113(a)(5) to issue orders prohibiting the construction or modification of any major stationary source if it finds [22 ELR 10308] that the state in which the source is located has failed to comply with any requirement of the Act concerning the construction or modification of such sources.¹⁴ EPA is also authorized to issue administrative penalty orders in such situations and to bring civil actions under § 113(b).¹⁵

Section 113(a)(5) was substantially rewritten in the 1990 amendments, and it is unclear under what circumstances Congress intended sanctions to apply against a facility that constructs or modifies a source in good-faith reliance on a permit issued pursuant to an EPA-approved state program. At least one court has held that EPA may not challenge a prevention of significant deterioration (PSD) permit issued by a state pursuant to an EPA-approved permit program by bringing an enforcement action against the permittee.¹⁶ The court held that once EPA has delegated permitting authority to a state under a provision of the Act, a regulated source is entitled to rely in good faith on permits issued by the state pursuant to that delegated authority. The court denied both EPA's request for an injunction barring construction and its request for civil penalties for the source's failure to comply with an administrative order barring construction.

There is nothing in the legislative history of the 1990 amendments to suggest that Congress intended to authorize enforcement actions against sources that act in good-faith reliance on permits issued under bona fide state programs. However, § 113(a)(5), as amended, might be read as expanding EPA's authority in this area by authorizing the Agency to bar construction in situations in which there is a clear violation of the Act — and to impose sanctions on sources that fail to comply with such a bar.

C. Civil Penalties and Judicial Orders

Section 113(b) authorizes EPA to commence a civil action against any person¹⁷ who is in violation of Titles I, III, IV, V, or VI of the Act (including fee requirements); an order issued under § 303; regulations promulgated under any of those provisions; or an administrative order.¹⁸ EPA may bring such an action to collect civil penalties and/or to obtain a temporary or permanent injunction against a non-complying source. Civil penalties of up to $ 25,000 per day of violation may be assessed.¹⁹ The court is given discretion to set the amount of the penalty, but is directed to

take into consideration (in addition to such other factors as justice may require) the size of the business, the economic impact of the penalty on the business, the violator's full compliance history and good faith efforts to comply, the duration of the violation …, payment by the violator of penalties previously assessed for the same violation, the economic benefit of noncompliance, and the seriousness of the violation.²⁰

The liability established under § 113(b) of the Act is strict; if a source is not in full compliance with statutory requirements, it may be required to pay civil penalties regardless of its good-faith efforts to comply — or even the technological infeasibility of the regulation at issue.²¹ Indeed, civil penalties may accrue even if the source is unaware of the violation.²² (A knowing violation may subject a source to criminal penalties.) However, the statute does direct the [22 ELR 10309] court to consider such factors in establishing the amount of the civil penalty.

D. Administrative Penalties

The 1990 amendments gave EPA yet another enforcement option: the assessment of simple administrative penalties under § 113.²³ These penalties may be assessed for the same violations for which civil penalties may be sought under § 113(b) and, like § 113(b) penalties, may be assessed in an amount of up to $ 25,000 per day of violation. The amount of the penalty is to be established based on the factors laid out in § 113(e)(1). The maximum such penalty that may ordinarily be assessed is $ 200,000, and EPA may not assess penalties for violations occurring more than 12 months before initiation of the action.²⁴ A person from whom such a penalty is sought is entitled to a hearing on the record pursuant to the Administrative Procedure Act (APA), and EPA is directed to promulgate procedures for such hearings, including "reasonable rules for discovery."²⁵ EPA's final penalty order is subject to judicial review in federal district court under a "substantial evidence" and "abuse of discretion" standard.²⁶ If the party against whom a penalty has been assessed fails to pay it, EPA may bring a civil action to recover the amount of the penalty, plus interest, an additional "nonpayment penalty" of 10 percent per quarter, and EPA's "enforcement expenses."²⁷

The 1990 amendments also authorize EPA to implement a "field citation" program, under which designated officials will be able to issue citations assessing penalties of up to $ 5,000 per day for minor violations.²⁸ Recipients of such citations will have a choice of either paying the penalty or requesting an informal (non-APA) hearing.²⁹ If the recipient of the citation requests a hearing but does not prevail, judicial review will be available under the same procedures established for other administrative penalties assessed under § 113. Payment of a civil penalty pursuant to a field citation will not bar further enforcement action, including the assessment of additional penalties, if the violation continues.

Finally, § 120 provides an alternative mechanism for the assessment of administrative penalties.³⁰ Under § 120, EPA is authorized to assess and collect administrative "noncompliance" penalties pursuant to regulations it has promulgated.³¹ Such penalties are to be roughly equivalent in amount to the economic gain enjoyed by the source as a result of its noncompliance. EPA may issue a notice of violation to a noncomplying source, and if the source fails to come into compliance within 30 days, penalties begin to accure more or less automatically.³² Sources from whom penalties are sought are entitled to a public hearing on the record.³³ Although the authority under § 120 has been available to EPA since 1977, it has been used relatively rarely by the Agency. Instead, when EPA has sought to collect penalties, it has generally proceeded under § 113. With new, more straightforward administrative penalty authority now available under § 113, EPA will likely have little incentive to increase its use of § 120.³⁴

II. State Enforcement

Every SIP promulgated under § 110 is required to include a program for enforcement by the state.³⁵ Section 113(a) requires EPA, in issuing a notice of violation to a source that is asserted to be out of compliance with SIP requirements, to provide a copy of the notice to the state whose SIP is allegedly being violated. The principal purpose of this requirement is to permit the state to take the lead in initiating enforcement action if it wishes to do so.³⁶ However, a state's decision not to initiate enforcement action does not affect EPA's right to proceed on its own.³⁷

In addition to enforcement of SIP requirements, states that have received delegated authority under other provisions of the statute, such as the NSPS, permitting, or air toxics programs, are similarly required to have in place procedures for the enforcement of program requirements.³⁸ In such cases, again, enforcement action may ordinarily be taken either by EPA or by the state.

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III. Citizen Suits

The Clean Air Act has a broad citizen suit provision. Section 304(a)(1) provides that "any person" may bring a civil action against any person or entity (including a federal or state government agency) that is alleged to be in violation of an emission standard or limitation (including SIP and permit requirements) or a federal or state administrative order.³⁹ The plaintiff in such an action must first give a 60-day notice to EPA, the state, and the proposed defendant, and if the violation continues or is repeated,⁴⁰ may then file suit in the federal district court where the source is located.⁴¹ If a violation is shown, the court may enter an order compelling compliance and/or assess civil penalties. Civil penalties collected under this section must either be turned over to a "penalty fund,"the proceeds of which are to be used by EPA for compliance and enforcement activities, or, if ordered by the court, used for "beneficial mitigation projects" designed to "enhance the public health and the environment."⁴² The court may also, if "appropriate," award the plaintiff its litigation costs, including attorneys and expert witness fees.⁴³

The use of citizen suits as an enforcement mechanism for violations of the Clean Air Act has been relatively rare, in part because in the past such suits could be brought only for injunctive relief and not to assess penalties. With the new penalty authority provided in the 1990 amendments — together with the host of new substantive requirements imposed by the amendments — such suits are likely to become much more common.

IV. Criminal Enforcement

In addition to civil and administrative penalties and injunctive relief, "knowing" violations of the Clean Air Act may be the subject of criminal enforcement. The 1990 amendments upgraded criminal violations of the Act from misdemeanors to felonies. Section 113(c) provides that "any person" who "knowingly" violates a SIP requirement, an administrative order, or certain listed requirements of other Clean Air Act programs⁴⁴ may be subject to criminal prosecution resulting in a criminal fine and/or imprisonment for up to five years.⁴⁵ Any person who knowingly makes a false material statement, representation, certification, or omission in a document required to be filed or maintained under the Act; knowingly alters, conceals, or fails to maintain or file such a document; fails to make a required notification or report; or tampers with or fails to install a monitoring device may be subject to a criminal fine and/or imprisonment for up to two years.⁴⁶ A knowing failure to pay a fee required under the Act may give rise to a fine and/or imprisonment for up to one year for the first offense, with the maximum penalty doubled for subsequent offenses.⁴⁷

The 1990 amendments for the first time added specific criminal provisions relating to releases of hazardous emissions that create "imminent danger of death or serious bodily injury."⁴⁸ If the release is negligent, the penalty is a fine and/or imprisonment for up to one year, with the penalty doubled after the first offense. A knowing release of such a hazardous nature can give rise to heavy criminal penalties (up to $ 1 million if the defendant is an "organization") and imprisonment for up to 15 years.⁴⁹ The maximum penalty is, again, doubled after the first conviction. The statute provides that "persons" who may be subject to criminal enforcement include, in addition to those who are considered "persons" for other purposes under the Act,⁵⁰ [22 ELR 10311] "any responsible corporate officer." Thus, when a violation of the statute by an emitting source is deemed to be "knowing," both the source and its "responsible corporate officers" may be prosecuted.⁵¹

The 1990 amendments added several additional definitions designed to clarify the scope of § 113(c). Most important, the amendments provide that a defendant may be held responsible only for "actual awareness or actual belief" that a violation was occurring, and may not be held liable for the knowledge of others. However, the court may consider evidence "that the defendant took affirmative steps to be shielded from relevant information."⁵² The amendments also establish consent as an affirmative defense for an offense involving physical endangerment, provided that the danger was a reasonably foreseeable hazard of an occupation, business, or profession or of medical treatment or medical or scientific experimentation conducted by professionally approved methods.⁵³

In practice, EPA has generally pursued civil rather than criminal remedies under the Act, even when a violation is arguably a "knowing" one. However, the possibility of criminal prosecution under what is theoretically a relatively simple standard makes noncompliance with statutory requirements a particularly risky proposition.

These criminal provisions (like similar criminal provisions under other environmental statutes) have been criticized as creating a difficult dilemma for a facility that discovers a violation and requires time in which to correct it. Once the violation is discovered, any continuation of the violation is knowing and hence theoretically provides a basis for criminal liability. Although various industry groups have urged Congress to create a "grace period," during which a facility that discovers a violation and is working to correct it could continue to operate without the danger of criminal sanctions, no such provision was adopted in the 1990 amendments. The 1990 Conference Report strongly encourages self-audits and states that knowledge gained solely in conducting such an audit "should not ordinarily form the basis of the intent which results in criminal penalties."⁵⁴ However, no such distinction appears in the statute. Moreover, the Conference Report also implies that any self-audit defense, if it exists, must include a showing that the results of the audit were reported to the responsible regulatory agency and that the violations were corrected "promptly."⁵⁵ As a result, facilities should think carefully before embarking upon a self-audit of air emissions and must be prepared to deal immediately and thoroughly with any violations that are found.

V. Settlements and Consent Orders

Many of the sources against which EPA brings civil enforcement actions become the subject of such actions in the first place because they are experiencing difficulty in complying with regulatory deadlines or other requirements. It is common in such cases for EPA to enter into a consent decree or order to establish an orderly program to bring the facility into compliance. Such consent orders generally include provisions for (1) an immediate payment of an agreed-upon amount of civil penalties for the source's past violations; (2) a detailed program for future compliance, including timetables, emissions limits, and other requirements, and (3) that will accrue automatically if the source fails to comply with one or more of the requirements of the order.

EPA has almost complete discretion to negotiate penalty amounts in connection with the settlement of its enforcement actions. The Agency has adopted several policies that establish guidelines for the penalties that it will ordinarily be prepared to accept for various types of violations. These penalty policies take into account a variety of factors, including the severity and duration of the violation that is the subject of the action.

Where a settlement of an enforcement action involves a consent order mandating future action by the source, EPA almost always insists on the inclusion of stipulated penalties for any future violations of the source's obligations under the order. The courts have typically interpreted such penalty provisions strictly and have recognized few defenses to a source's obligation to pay the stipulated amount if it fails to comply with the order.⁵⁶

Consent decrees are also a common method to resolve other litigation in which EPA is involved under the Act, including citizen suit actions against the Agency for failure to fulfill a nondiscretionary duty. The 1990 amendments added a new provision requiring public notice of such settlements and an opportunity for public comment before they are made final and submitted to the court.⁵⁷ However, enforcement actions under §§ 113 and 120 are expressly excluded from this notice-and-comment requirement.

VI. Emergency Powers

In addition to its other enforcement powers, EPA is authorized under § 303 to take emergency action against any source (or combination of sources) that presents "an imminent and substantial endangerment to public health or welfare, or the environment…."⁵⁸ Such emergency actions may include a suit in federal district court for injunctive relief against the source of the emissions at issue (and other appropriate relief) and the issuance of [22 ELR 10312] administrative orders.⁵⁹ Before initiating an action under § 303, EPA must consult with state and local authorities to ensure that the information on which it is basing its action is accurate.

Section 303 is designed to deal with severe emergency situations rather than routine enforcement, and it has rarely been invoked. However, by freeing the Agency from the strict notice and other procedural requirements that apply to ordinary enforcement actions, it gives EPA the ability to act quickly when a true emergency arises. In addition to freeing the Agency from otherwise applicable procedural requirements, §§ 303 and 112(r)(9) are unique in permitting EPA to take action solely on the basis of danger to public health, welfare, or the environment.⁶⁰ No actual violation by the source against which relief is sought must be shown.

VII. Inspection, Monitoring, and Reporting Requirements

Section 114 provides a variety of tools that EPA may use to obtain information to monitor compliance with the Act's requirements and, as appropriate, to initiate and maintain enforcement actions against noncomplying sources. Under § 114, EPA may require any source of air emissions to maintain records concerning its operations, to submit reports, to install and use monitoring equipment, to conduct sampling, and to provide any other information that EPA "may reasonably require."⁶¹ EPA may also enter the premises of any such source to inspect monitoring equipment or records or to sample emissions.⁶²

If EPA intends to carry out an inspection to assess compliance with a SIP or other state-promulgated requirement, it must first notify the relevant state agency of its intent.⁶³ The Agency may also "delegate" its authority under § 114 to the states.⁶⁴ In addition, the states are required to develop their own programs for monitoring, reporting, and other data-gathering functions as part of their SIPs, and data submitted pursuant to such programs must be made available to the public.⁶⁵

Records, reports, and other information obtained by EPA under § 114 must also be made available to the public.⁶⁶ Exemptions may be granted for information that would divulge trade secrets, but no such exemptions may be granted for "emission data." In addition to fulfilling a general public education function, these public disclosure requirements are designed to assist potential citizen suit plaintiffs by giving them access to the basic data that may provide the basis for such suits.

The 1990 amendments substantially strengthened § 114 by providing that major stationary sources must (and other sources may) be required to submit "compliance certifications," certifying their compliance with applicable statutory and regulatory requirements.⁶⁷ Such certifications must identify, interalia, the applicable requirements, the source's compliance status, and the method used for determining that status. Thus, sources will now be required not simply to respond to requests from EPA for raw data, but also to report affirmatively on the extent to which they are or are not in compliance with applicable requirements.

Section 114(a)(3) directs EPA to promulgate regulations to implement the new compliance certification requirement. The exact form that those regulations will take is not yet known; however, it appears likely that this program, once put into place, will make the task of enforcement much easier. Sources that are not in full compliance with applicable regulatory requirements will be under an affirmative duty to report that fact. Failure to make such a report will itself place the source in violation of the Act and may become the basis for civil or criminal penalties. Moreover, compliance certification reports will be available to the public and are likely to be especially helpful to potential citizen suit plaintiffs.

In addition to its powers under § 114, EPA is authorized under § 307(a) to issue administrative subpoenas requiring the attendance of witnesses and the production of documents. EPA is authorized to issue such subpoenas both in connection with its investigatory and monitoring functions and for use in administrative hearings. Subpoenas issued under § 307(a) may be enforced in federal district court. As under § 114, if material requested under an administrative subpoena contains trade secrets or similar information, that information may be treated confidentially.

Finally, EPA is authorized to pay rewards, in amounts up to $ 10,000, to anyone (other than a federal, state, or local government employee) who provides information or services that lead to an administrative, civil, or criminal penalty.⁶⁸ EPA is authorized to promulgate regulations establishing criteria for such rewards.

1. The enforcement mechanisms discussed in this section apply primarily to stationary sources. Special enforcement provisions for mobile sources are established in Title II of the Act.

2. Enforcement actions brought in federal court are generally brought by the Department of Justice, with the "United States" as the plaintiff. See CAA § 305, 42 U.S.C. § 7605, ELR STAT. CAA 136; United States v. R.E.A.G., 730 F. Supp. 482 (D. Conn. 1989). EPA however, initiates such actions and remains closely involved in their prosecution.

3. Clean Air Act (CAA) § 113(a)(1), 42 U.S.C. § 7413(a)(1), ELR STAT. CAA 48. An exception to this requirement is made for cases in which the Agency finds widespread violations within a state that it determines to be the result of the state's general failure to enforce its plan. In such a case, EPA must inform the state, and 30 days later may give public notice that it is beginning a period of "federally assumed enforcement." After such a notice is published, EPA may proceed to issue administrative orders or to bring civil actions against individual sources. CAA § 113(a)(2), 42 U.S.C. § 7413(a)(2), ELR STAT. CAA 48-49.

4. Before the 1990 amendments, continuation of the violation for 30 days following the notice was a prerequisite to further civil or administrative enforcement action under § 113. This requirement has now been dropped. However, the violation that forms the basis for the enforcement action must be the same violation cited in the notice. See United States v. Ford Motor Co., 736 F. Supp. 1539, 20 ELR 21126 (W.D. Mo. 1990); United States v. La.-Pac. Corp., 682 F. Supp. 1122, 18 ELR 20350 (D. Colo. 1987), civil penalty assessed, 682 F. Supp. 1141, 18 ELR 20912 (D. Colo. 1988).

5. Before the 1990 amendments, § 113(d) also permitted EPA or a state to issue a delayed compliance order (DCO) to a source that was unable to meet a SIP deadline. See 40 C.F.R. pt. 65 (1991). The statute imposed detailed requirements and limitations on DCOs, and such orders were in practice extremely difficult to obtain. Moreover, when a DCO was issued by a state to a major stationary source, the statute required EPA approval of the order. The 1990 amendments deleted the authorization for DCOs.

6. CAA § 113(a)(1), 42 U.S.C. § 7413(a)(1), ELR STAT. CAA 48.

7. Compare Seabrook v. Costle, 659 F.2d 1371 (5th Cir. 1981) (no duty) and Atlantic Terminal Urban Renewal Area Coalition v. New York City Dept. of Envtl. Protection, 705 F. Supp. 988, 19 ELR 21032 (S.D.N.Y. 1989) (same) with New England Legal Found. v. Costle, 475 F. Supp. 425, 10 ELR 20438 (D. Conn. 1979) (duty exists), aff'd in part and rev'd in part, 632 F.2d 936, 10 ELR 20447 (2d Cir. 1980) and Wisconsin Envtl. Decade, Inc. v. Wisconsin Power & Light Co., 395 F. Supp. 313 (W.D. Wis. 1975) (same).

8. Pacificorp v. Thomas, 883 F.2d 661, 20 ELR 20086 (9th Cir. 1988); West Penn Power Co. v. Train, 522 F.2d 302, 5 ELR 20557 (3d Cir. 1975), cert. denied, 426 U.S. 947 (1976).

9. Kentucky ex rel. Hancock v. Ruckelshaus, 497 F.2d 1172, 4 ELR 20484 (6th Cir. 1974), aff'd sub nom. Hancock v. Train, 426 U.S. 167, 6 ELR 20555 (1976); New England Legal Found. v. Costle, 475 F. Supp. at 433, 10 ELR at 20438.

10. 42 U.S.C. § 7413(a)(1), ELR STAT. CAA 48.

11. CAA § 113(d)(3), 42 U.S.C. § 7413(d)(3), ELR STAT. CAA 50-51. Orders concerning violations of these requirements, unlike those involving SIPs, need not be preceded by a notice of violation.

12. CAA § 113(a)(5), 42 U.S.C. § 7413(a)(5), ELR STAT. CAA 49.

13. CAA § 113(a)(4), 42 U.S.C. § 7413(a)(4), ELR STAT. CAA 49. Such an order may be made effective immediately if it involves a violation of § 112 (relating to emissions of hazardous substances).

14. 42 U.S.C. § 7413(a)(5), ELR STAT. CAA 49. Thus, for example, EPA may bar construction of a new major stationary source in a nonattainment area if the source has not obtained the required offsets or if the state has failed to require the source to comply with the lowest achievable emission rate (LAER). See also CAA § 167, 42 U.S.C. § 7477, ELR STAT. CAA 70 (authorizing orders barring construction or modification of sources in violation of prevention of significant deterioration (PSD) requirements). However, § 113(a)(5) does not authorize EPA to bar the operation of a new source (or modification) that was constructed in a manner found by EPA to violate statutory requirements. Such an extension of authority was considered for inclusion in the 1990 amendment of this provision, see S. REP. NO. 228, 101st Cong., 1st Sess. 358 (1989), but does not appear in the final version as enacted.

15. CAA § 113(a)(5)(B), (C), 42 U.S.C. § 7413(a)(5)(B),(C), ELR STAT. CAA 49. Criminal sanctions are also authorized.

16. United States v. Solar Turbines, Inc., 732 F. Supp. 535, 20 ELR 20562 (M.D. Pa. 1989); cf. United States v. Ford Motor Co., 736 F. Supp. 1539, 20 ELR 21126 (W.D. Mo. 1990) (EPA could not challenge alternative compliance plan authorized by state under its EPA-approved SIP through enforcement action against source for which plan had been approved).

17. For purposes of this section, the term "person" includes owners and operators of major sources, including senior management personnel and corporate officers. 42 U.S.C. § 7413(h), ELR STAT. CAA 51. Other employees may be held liable only for knowing and willful violations. Id.

18. CAA § 113(b), 42 U.S.C. § 7413(b), ELR STAT. CAA 49. The Act provides that such actions may be brought in any district in which the violation occurred or in which the defendant resides or has its principal place of business. The court is given full authority to restrain violations, to require compliance, and to assess and collect fees and penalties. If the court finds that EPA was "unreasonable" in bringing the action, it may award to the defendant its costs of litigation, including attorneys and expert witness fees. Id.

19. Section 113(e)(2), which was added by the 1990 amendments, provides that the number of "days of violation" is to be counted beginning on the first proven day of violation and continuing every day until the violator demonstrates that it achieved continuous compliance, unless the violator can prove by a preponderance of the evidence that there were intervening days on which no violation occurred. This definition, which applies to all civil and administrative penalties assessed under §§ 113, 120, or 304 of the Act, settles a controversy over whether continuing "days of violation" may be inferred when actual data are available only for a few scattered dates. See, e.g., United States v. SCM Corp., 667 F. Supp. 1110, 18 ELR 20073 (D. Md. 1987).

20. CAA § 113(e)(1), 42 U.S.C. § 7413(e)(1), ELR STAT. CAA 51. In General Motors Corp. v. United States, 110 S. Ct. 2528, 20 ELR 20959 (1990), EPA asserted that the "other factors" that the court is to consider would properly include equitable factors such as EPA's own wrongdoing (e.g., in failing to act within a reasonable time to complete its review of a pending SIP revision that would have mooted the violation). The Court, in a footnote in its opinion in that case, strongly implied its agreement with this interpretation. See id. at 2534 n.4.

21. United States v. Vanguard Corp., 701 F. Supp. 390 (E.D.N.Y. 1988); see Union Elec. Co. v. EPA, 427 U.S. 246, 6 ELR 20570 (1976) (statute does not require SIP requirements to be technologically feasible).

22. Section 113 is not entirely clear on whether civil penalties may be assessed for violations that occur before suit is brought. However, EPA has taken the position that § 113 does permit retroactive penalties, and at least some courts have accepted this interpretation as reasonable. United States v. SCM Corp., 667 F. Supp. at 1110, 18 ELR at 20073; United States v. Chevron U.S.A, Inc., 639 F. Supp. 770, 15 ELR 21021 (W.D. Tex. 1985). Moreover, although the 1990 amendments did not directly address this point, § 113 was amended to provide that notices of violation could be issued — and civil actions pursued — to address past violations as well as continuing ones. See Chafee-Baucus Statement of Senate Managers, reprinted in 136 CONG. REC. S16933, S16950-51 (daily ed. Oct. 27, 1990). This strongly suggests that civil penalties will be available for past violations as well. See also S. REP. NO. 228, supra note 14, at 361-62. But see United States v. Ford Motor Co. 736 F. Supp. 1539, 20 ELR 21126 (W.D. Mo. 1990) (penalties not recoverable under pre-1990 version of Act for violations that had ceased permanently before issuance of notice of violation).

23. CAA § 113(d), 42 U.S.C. § 7413(d), ELR STAT. CAA 50-51.

24. EPA may assess penalties in greater amounts or for longer periods upon a joint determination by the Administrator and the Attorney General that such an expansion is "appropriate." CAA § 113(d)(1), 42 U.S.C. § 7413(d)(1), ELR STAT. CAA 50. Such a determination is not subject to judicial review, although EPA's final penalty order is fully reviewable. Id.

25. CAA § 113(d)(2)(A), 42 U.S.C. § 7413(d)(2)(A), ELR STAT. CAA 50.

26. CAA § 113(d)(4), 42 U.S.C. § 7413(d)(4), ELR STAT. CAA 51. Such an action must be brought within 30 days following the date on which the order becomes final. EPA may bring a counterclaim to recover the penalties assessed in the order. Id.

27. CAA § 113(d)(5), 42 U.S.C. § 7413(d)(5), ELR STAT. CAA 51. The validity, amount, and appropriateness of the penalty order are not subject to review in such an action. Id.

28. CAA § 113(d)(3), 42 U.S.C. § 7413(d)(3), ELR STAT. CAA 50-51.

29. The legislative history accompanying this provision encourages EPA to hold hearings on field citations at a location "reasonably close" to the recipient's place of business. See H.R. REP. NO. 490, pt. 1, 101st Cong., 2d Sess., pt. 1, at 394 (1990).

30. 42 U.S.C. § 7420, ELR STAT. CAA 55. This provision was added by the 1977 amendments to the Act and before 1990 provided the only mechanism for the assessment of administrative penalties.

31. See 40 C.F.R. pt. 66 (1991).

32. However, § 120 specifically provides that penalties may be assessed only prospectively, beginning 30 days after the notice of violation.

33. A final EPA order assessing penalties under § 120 is reviewable in the court of appeals. EPA may enforce the order, if necessary, through an action in federal district court under § 113(b). 42 U.S.C. § 7413(b), ELR STAT. CAA 49. The statute also permits EPA to delegate its authority under § 120 to the states. EPA has promulgated regulations that establish requirements for states seeking such delegation. 40 C.F.R. pt. 67 (1991).

34. But see United States v. International Harvester Co., 624 F. Supp. 216, 16 ELR 20382 (S.D. Ohio 1985) (remedies, including penalties, available under § 113 and 120 may be "simultaneous, independent, and cumulative").

35. CAA § 110(a)(2)(C), 42 U.S.C. § 7410(a)(2)(C), ELR STAT. CAA 20.

36. See S.REP.NO. 228, supra note 14, at 361-62; H.R. REP. NO. 490, supra note 29, at 391.

37. See United States v. Ford Motor Co., 736 F. Supp. 1539, 20 ELR 21126 (W.D. Mo. 1990) (state determination that source was in compliance does not bar federal enforcement action); United States v. SCM Corp., 615 F. Supp. 411, 15 ELR 21007 (D. Md. 1985) (federal enforcement action not barred by state administrative consent order). The resolution of conflicts between state and EPA interpretations of a SIP is discussed in more detail infra chapter 3.

38. See, e.g., 40 C.F.R. § 60.26(a)(2).

39. CAA § 304(a)(1), 42 U.S.C. § 7604(a)(1), ELR STAT. CAA 134. Section 304(a)(2) authorizes citizen suits against EPA for failure to perform nondiscretionary acts. This provision is discussed further infra chapter 12.

40. In recent cases involving similar citizen suit provisions in other environmental statutes, the Supreme Court has found both full compliance with the advance notice requirement and a continuation of the violation to be jurisdictional prerequisites to a citizen suit. Hallstrom v. Tillamook County, 110 S. Ct. 304, 20 ELR 20193 (1989); Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 18 ELR 20142 (1987); see Moran v. Vaccaro, 684 F. Supp. 1201, 18 ELR 21108 (S.D.N.Y. 1988). The 1990 amendments to the Clean Air Act permit the "continuation" requirement to be met with a showing that the violation has been "repeated." CAA § 304(a), 42 U.S.C. § 7604(a), ELR STAT. CAA 134-35; see Chafee-Baucus Statement of Senate Managers, reprinted in 136 CONG. REC. S16933, S16953 (daily ed. Oct. 27, 1990).

41. No citizen suit may be brought if EPA or the state is itself "diligently prosecuting" an enforcement action against the defendant, but citizens are entitled to intervene as a matter of right in such actions. CAA § 304(b)(1)(B), 42 U.S.C. § 7604(b)(1)(B), ELR STAT. CAA 135. The pendency of a citizen suit does not bar EPAfrom initiating an enforcement action on its own, although it may also intervene in the citizen action as a matter of right. CAA § 304(c)(2), (e), 42 U.S.C. § 7604(c)(2), (e), ELR STAT. CAA 135. If EPA does not intervene, the judgment in the case is not binding on it.

42. CAA § 304(g), 42 U.S.C. § 7604(g), ELR STAT. CAA 135-36. Only penalties in amounts less than $ 100,000 may be directed to "beneficial projects."

43. CAA § 304(a), (d), 42 U.S.C. § 7604(a), (d), ELR STAT. CAA 134-35.

44. These requirements include those imposed under §§ 111, 112, 114, 129, 165(a), 167, 303, 502(a), 503(c), and Titles IV and VI, and regulations promulgated under them. Nearly all significant substantive requirements applicable to stationary sources are included on this list.

45. CAA § 113(c)(1), 42 U.S.C. § 7413(c)(1), ELR STAT. CAA 49. The maximum punishment is doubled after the first conviction.

46. CAA § 113(c)(2), 42 U.S.C. § 7413(c)(2), ELR STAT. CAA 49-50. Again, the maximum punishment is doubled after the first conviction. The conference report on the 1990 amendments, which greatly expanded criminal liability for violations of recordkeeping requirements, states that "inadvertent errors" should not be penalized under this section and that "[f]or criminal sanctions to apply, a source owner or operator must be on notice of the recordkeeping, information or monitoring requirements in question." H.R. CONF. REP. NO. 952, 101st Cong., 2d Sess. 347-48 (1990); see also 136 CONG. REC. E3677 (Nov. 2, 1990).

47. CAA § 113(c)(3), 42 U.S.C. § 7413(c)(3), ELR STAT. CAA 50. In addition, any person convicted of a criminal violation of the Act is barred from all federal contracts to be performed at the facility where the violation occurred. This bar remains in place until EPA certifies that the condition giving rise to the violation has been corrected. CAA § 306, 42 U.S.C. § 7606, ELR STAT. CAA 136. The 1990 amendments expand the potential scope of this sanction by authorizing EPA to extend the bar to "other facilities owned or operated by the convicted person." Id.

48. CAA § 113(c)(4), (5), 42 U.S.C. § 7413(c)(4), (5), ELR STAT. CAA 50. These provisions apply to knowing or negligent releases into the ambient air of substances listed under § 112 of the Clean Air Act or § 302(a)(2) of the Emergency Planning and Community Right-to-Know Act (42 U.S.C. § 11002(a)(2)). Emissions that are in full compliance with an existing emission standard or permit will not be deemed to be violations under this section.

49. CAA § 113(c)(5), 42 U.S.C. § 7413(c)(5), ELR STAT. CAA 50. For this provision to apply, the defendant must both cause the release "knowingly" and must know "at the time that he thereby places another person in imminent danger of death or serious bodily injury…." Id.

50. Section 302(e) provides that for general purposes, the term "person" under the statute "includes an individual, corporation, partnership, association, State, municipality, political subdivision of a State, and any agency, department, or instrumentality of the United States and any officer, agency, or employee thereof." 42 U.S.C. § 7602(e), ELR STAT. CAA 133.

51. CAA § 113(c)(6), 42 U.S.C. § 7413(c)(6), ELR STAT. CAA 50. Lower-level employees may also be subject to criminal liability if they knowingly cause a violation. CAA § 113(h), 42 U.S.C. § 7413(h), ELR STAT. CAA 51. However, such employees may avoid liability if they can establish that they were carrying out their "normal" activities and were "acting under orders from the employer." Id.

52. CAA § 113(c)(5)(B), 42 U.S.C. § 7413(c)(5)(B), ELR STAT. CAA 50.

53. CAA § 113(c)(5)(C), 42 U.S.C. § 7413(c)(5)(C), ELR STAT. CAA 50. In addition, § 113(c)(5)(C) provides that all defenses generally available in federal criminal prosecutions are also available in cases brought under this section.

54. H.R. CONF. REP. NO. 952, supra note 46, at 348. The Conference Report also stresses that EPA has prosecutorial discretion and need not pursue de minimis or technical violations. See also Chafee-Baucus Statement of Senate Managers, reprinted in 136 CONG. REC. S16933, S16951 (daily ed. Oct. 27, 1990).

55. H.R. CONF. REP. NO. 952, supra note 46, at 348; see also Chafee-Baucus Statement of Senate Managers, reprinted in 136 CONG. REC. at S16951 (daily ed. Oct. 27, 1990).

56. See, e.g., United States v. National Steel Corp., 767 F.2d 1176, 15 ELR 20678 (6th Cir. 1985); United States v. Moore Am. Graphics, Inc., No. 84 C 6547 (N.D. Ill. July 6, 1989).

57. CAA § 113(g), 42 U.S.C. § 7413(g), ELR STAT. CAA 51.

58. CAA § 303(a), 42 U.S.C. § 7603(a), ELR STAT. CAA 134.

59. Similar emergency powers are authorized under § 112(r)(9). EPA is directed to proceed under § 303 rather than § 112(r)(9) whenever the authority provided under the former section "is adequate to protect human health and the environment." 42 U.S.C. § 7412(r)(9), ELR STAT. CAA 44.

60. Before 1990, § 303 authorized relief only against pollution endangering the "health of persons." The new reference to public welfare and the environment expands EPA's authority to situations in which an imminent and substantial threat to health cannot be shown, but an equivalent threat to the environment does exist. See S. REP. NO. 228, supra note 14, at 370.

61. CAA § 114(a)(1), 42 U.S.C. § 7414(a)(1), ELR STAT. CAA 52.

62. CAA § 114(a)(2), 42 U.S.C. § 7414(a)(2), ELR STAT. CAA 52.

63. CAA § 114(d), 42 U.S.C. § 7414(d), ELR STAT. CAA 52. The state agency is forbidden to use this notice to give prior warning of the inspection to the source. If EPA reasonably believes that the state agency will not comply with this restriction, it may forego the prior notice. Id.

64. CAA § 114(b), 42 U.S.C. § 7414(b), ELR STAT. CAA 52.

65. CAA § 110(a)(2), 42 U.S.C. § 7410(a)(2), ELR STAT. CAA 20.

66. CAA § 114(c), 42 U.S.C. § 7414(c), ELR STAT. CAA 52.

67. CAA § 114(a)(3), 42 U.S.C. § 7414(a)(3), ELR STAT. CAA 52.

68. CAA § 113(f), 42 U.S.C. § 7413(f), ELR STAT. CAA 51.