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EPA Issues Guidance Regarding Availability of Pre-Enforcement Review of Unilateral Enforcement Orders Under the Clean Air Act Following Sackett


EPA has recently clarified that regulated entities may obtain “pre-enforcement review” of certain enforcement orders issued under the Clean Air Act.  The policy statement was made in an un-publicized internal agency memorandum issued on March 21, 2013. The memorandum clarified a significant question for regulated entities that has existed since the U.S. Supreme Court ruled in 2012 that regulated entities could proceed directly to court to challenge EPA compliance orders under Section 309 of the Clean Water Act. In that case, Sackett v. EPA, the agency had argued that enforcement orders could not be reviewed by a court until the agency initiated a formal enforcement action – such as the filing of an administrative complaint or a federal court action. The Supreme Court rejected this argument, and found that EPA’s Clean Water Act Section 309 compliance orders are subject to review in federal court even if EPA has not prosecuted the entity it alleged to be in violation the act.

Following the Sackett decision, there has been an open question as to whether the Supreme Court’s ruling applied to EPA enforcement orders under other federal environmental laws. In various court actions, the recipients of EPA orders under other statutes have argued that the ruling in Sackett should apply to other statutes, but EPA had not announced its policy on the issue. EPA’s March 21 memorandum clarifies that pre-enforcement review is available for certain orders issued under the Federal Insecticide Rodenticide and Fungicide Act (FIFRA), the Safe Drinking Water Act (SDWA), the Emergency Planning and Community Right to Know Act (EPCRA), the Resource Conservation and Recovery Act (RCRA), and the Clean Air Act. With respect to the Clean Air Act, the March 21 memorandum states that pre-enforcement review should be available for Stop Work Orders issued under Sections 113 and 167 and Administrative Compliance Orders under Section 113. The memorandum directs EPA enforcement staff to include standard language in these orders stating that “Respondent may seek federal judicial review of the Order.”

In light of this memorandum, regulated entities that receive Stop Work Orders and Compliance Orders from EPA may file an action in federal court challenging the agency’s decision, before penalties or injunctive relief are imposed. But the memorandum did not address whether pre-enforcement review extends to all enforcement documents that may be issued by EPA under the Clean Air Act. Most notably, the memorandum does not address whether Notices of Violation (NOVs) are subject to immediate “pre-enforcement” review. Whether pre-enforcement review of NOVs is available is currently the subject of a case styled Luminant v. EPA, pending before the U.S. Court of Appeals for the Fifth Circuit. In Luminant, EPA issued an NOV alleging that an electric utility violated the New Source Review (NSR) requirements at two generating facilities in Texas. The company immediately challenged the NOV in federal court, arguing that it was entitled to pre-enforcement review under Sackett. EPA has argued in the case that pre-enforcement review is not available for NOVs, and that allowing such review would greatly hinder EPA’s enforcement efforts. The federal appeals court has not yet ruled on the issue.

Although the March 21 memorandum is only internal agency guidance, and not a final regulation, it can be expected that EPA’s enforcement staff will adhere to the memorandum and not oppose attempts to seek federal review of certain compliance orders issued by the agency. Whether NOVs and other orders not listed in the memorandum will also be subject to pre-enforcement review will likely be determined on a case-by-case basis until the issue is resolved by the courts.

To view a complete PDF of the Second Quarter 2013 issue of the Air Quality Letter, click HERE.

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