Tennessee Valley Authority v. Whitman

CAA empowers the EPA Administrator to TJOFLAT, Before BARKETT and issue ACOs that law,3 have the status of WILSON, Circuit Judges. we believe that the statutory scheme is unconstitutional to the extent severe TJOFLAT, Judge: Circuit civil and criminal penalties can imposed The Environmental Protection Agency for noncompliance with the terms of an (“EPA”) concluded that the Tennessee ACO. Accordingly, legally ACOs are incon- (“TVA”) Valley Authority violated the sequential and do not final agen- constitute (“CAA”)1 Air Clean Act when it undertook cy We action. therefore decline to assert fourteen projects rehabilitation at nine jurisdiction petition over TVA’s for review coal-fired power electric plants without 7607(b)(1).4 U.S.C. permits. The EPA then issued an admin- EPA prove must of a existence CAA 1. that, The Clean Air Act violated, is codified at 42 injunction, U.S.C. if impo- leads to the §§ 7401-7671q. sition punishment. of civil criminal and/or Thus, noncompliance if with the terms of an 2. EPA normally concedes that must ACO can be the sole imposition basis for the prove a CAA in a violation federal district imprisonment, of severe fines and then an party disputes if a court an ACO: "In most ACOhas the status of law. party disputes order, instances if a ... can bring choose to enforce- 7607(b)(1) provides appellate 4.Section re- action.” Respondents ment Second Brief of "any view of other final action of the Adminis- at 9. chapter.” trator under this law,” we phrase When use the "status of we instrument, referring are legal to a such as an vein, In this of law. then, the status ACOs with court; TVA until in district re- III and IV parts tension between risking ÁCO without ignore

is free poorly drafted. noncompli- was the CAA veals imposition is unconsti- why the CAA explains Part V its terms. ance with monetary penal- to the extent tutional parts. of six consists opinion This imposed can be imprisonment ties and CAA’s enforcement I, we describe part an ACO. noncompliance with merely for of this component important An scheme. why the statute explains part also This following observation: discussion pre-ACO voluntary by a cannot be saved that ACOs be clearly intended Congress conclusion, VI, adjudication. Part adjudication, any sort of without issued depriva- since a following point: makes the now) (until abided always the EPA cannot property stem liberty tion part This interpretation. this obvious ACO, with an noncompliance from mere litigation, course of also describes consequence have no ACOs conduct an decision to EPA’s detailing the final not constitute therefore do the issuance prior to adjudication constitution- only this Not result pro- action. employed adjudication ACO—an enables future compelled, it also ally that were invented rules cedural thorny problems judge sidestep the law to courts and administrative EAB III, the fact that part hoc basis. such as (“ALJ”) presented by an ad applied on a record of the Su- without typically an overview issued provides Part II ACOs are part This finality adjudication doctrine. of that an EPA preme Court’s the fact focusing discussion the of provisions concludes liability with other conflicts finality factor: whether the one essential statutory scheme. the or obli- legal right a action fixes agency’s Background I. ultimately we believe Although

gation. the ACOs with status the clothes that CAA Statutory A. The Scheme why conclu- law, explains this part III of regulated that a EPA finds When the axiomatic, notwithstanding the is not sion of unlawful engaging in sort party is some fac- the Several of statute. plain language pollutants emitting as ex- activity—such interpretation might inform our tors that regulations or by EPA of allowed cess that legislative agency practice, the of CAA— a without constructing pollution a source statutory construction the history, canon implementation by a permit required state interpret to statutes requires courts (“SIP”) four enforce- plan —the constitutional, renders them way in a First, request can options. the EPA ment review, and statuto- problem the commence Attorney the General point to the conclusion ry structure —all 42 U.S.C. See prosecution. criminal did not ACOs Congress intend (c).5 Second, 7413(a)(3)(D), the EPA § explains of law. IV have the Part status and seek court file in district can suit language of the CAA leads plain the how imposition of civil and the injunctive relief that Con- unavoidable conclusion to the 7413(a)(1)(C), § 42 U.S.C. fact, fines.6 See did, the issuance authorize gress Rather, suit need to file at trial. the decision statutory provisions that are rele- key 5. The upon "any information avail- only and section case—section 7413 be based vant to 7413(a)(1)(C). appendix. See, § e.g., found in the attached 7477—can be U.S.C. able.” is, only suit need decision file That the file decides to Administrator 6. When the something "probable cause” akin to the meet court, decision district action in civil law the standard for criminal standard in upon the be based substan- suit need not file Fed.R.Civ.P. 11. avoiding found sanctions necessary victory tial amount of evidence (b). (a)(2)(C), (a)(3)(C), Third, the EPA ed the CAA. Like the decision pursue can, adjudication after a formal liability civil enforcement action in district court with APA7 consistent and 40 C.F.R. and the potential decision to refer a crimi- 22,8 § penalties against assess civil the vio- nal violation to Attorney General, 7413(d). § lator. See 42 U.S.C. Whenev- decision to issue ACO is made “on er these three enforcement methods basis of any information available used, following fact true: if remains 7413(a)(1). Administrator.” 42 U.S.C. the defendant believes that the EPA has is, That the Administrator need only have based conclusions its facts erroneous report, a staff newspaper clipping, anony- law, or an incorrect understanding phone mous tip, or anything else that may the defendant make factual would “any constitute information.” The arguments in an independent forum—one standard rigorous is less probable than the that enables the defendant to utilize a cause required standard for the issuance of panoply pre-established procedural warrants; search certainly pre-ACO no rights. adjudication party that a has violated the (such CAA modifying pollution option: EPA also has a fourth it can SIP) source in of an is contem- issue an directing regulated ACO par- plated. This observation is ty confirmed not requirements. various only by language statute, but 7413(a)(1)(A), (a)(2)(A), See U.S.C. by agency practice. also (a)(3)(B), (a)(4). rarely, ACOs are ACOs can be issued so ever, if issued after an long agency adjudica- following as the requirements are 7413(d) tion.9 (a) Finally, section they met: explicitly must upon “any be based requires adjudication information before the EPA available to the Administra- (b) tor”; can penalties, assess civil they thirty underscoring must be issued days fact that Congress after the when Violation; issuance of a of wants the Notice EPA to (c) conduct regulated adjudication, and the an party given must be knows to how “opportunity sum, an effectuate that to confer” with result. the Admin- the stat- (4). 7413(a)(1), structure, § istrator. See 42 ute’s language U.S.C. and in addition to agency practice, make clear that ACOs are problem The with ACOs stems from issued any adjudication. without injunction-like their coupled status with the they fact that A aspect are second issued without of is that they ACOs an adjudication meaningful judicial or re- have the status of law. other three First, view. ACOs are any issued options without enforcement dovetail with the ACO adjudication sort of that party a provisions, has violat- making a violation of an ACO a 22.14; It need upon rigorous not be based plaint, § the more practice, see motion see 22.16; requirement resolution, evidence” § “substantial dispute alternative see 22.18; 22.19; § APA. See 5 U.S.C. goes § 706. The discovery, § same for see the admission evidence, potential 22.22; a to decision refer a § viola- findings criminal of see and of fact Attorney AU, tion to 22.21; the General. by § conclusions of law an see EAB, appellate by § and review the see 22.29. §§ 7. See 5 U.S.C. 555. case, example, 9.In six ACOs were § 8. 40 C.F.R. codifies the EPA's "Consoli- issued adjudication the EPA without Governing ACO, dated Rules of Practice the Admin- whatsoever. The seventh unlike the six, istrative Assessment of Civil Penalties and the first was issued after the EPA a undertook Suspension or proceeding of Per- adjudication Revocation/Termination that resembles an —a mits.” Part 22 step contains an set exhaustive of "exceedingly the EPA concedes was procedures governing adjudication, formal Respondent in- unusual.” See First Brief of cluding following: the filing the a corn- of Co., Co. vehe- Energy and is, Energy to a violation That violation. freestanding It be- EPA with the mently disagrees the basis itself can serve an ACO of EPA has its fines or the based civil extensive lieves of imposition the find- the law 7413(b), view for exam- erroneous upon an ing Section imprisonment. nothing be action can it does civil and so facts, that a provides ple, has person a only when the Notice Violation. response to commenced Af- but regulation, EPA issues or Administrator days, an SIP the violated ter 30 an to with compli- fails party also after administrative highly detailed 7413(c)(1)pro- Similarly, section to U.S.C. “order.” pursuant ance knowingly who “[a]ny person 7113(a)(1). pro- vides that The Administrator § (a) under subsection any order ... violates “opportunity with an Energy Co. vides shall, upon con- § ... 7413] 7113(a)(If), of [42 U.S.C. hoping confer,” see to pursuant to by a fine viction, punished be Energy with the matter settle can she to for not by imprisonment Title avoid the thereby Co. and difficult liabili- Criminal or both.” years, exceed proving violation costly task of a violation upon predicated can ty also revises the The Administrator court. to U.S.C. pursuant issued of an ACO avail; times, En- but to no several ACO EPA can administra- Finally, the § 7477. believe ergy Co. continues based penalties civil tively assess law view Administrator’s issued “order” conducting an wrong. After facts 7413(d). Appar- 42 U.S.C. EPA. See aout that it can make investigation so dispensation with ently dissatisfied Co., the EPA Energy against complaint courts, Congress em- by the federal justice action: following course takes the central decide the EPA powered administratively the EPA seeks first, regulated party of whether question against Energy civil assess regulation. SIP complied second, 7113(c); section pursuant Co. underlying EPA has decided Once in dis- injunction seeks an injunction- can liability, it issue issue 7113(b); to section court trict which, upon noncompliance, like order En- third, EPA believes that because penalties. a host of leads severe “knowing violator” ergy is a Co. illustrate scheme: following scenarios 7113(d), the it asks under section SIP EPA Administrator One: The Scenario bring a criminal to Attorney General stating that report newspaper a reads three Co. In all against Energy power plant Co. has Energy modified an in- seeking civil suit forums —the re- The EPA also permit. without intra-agency proceeding junction, the “con- anonymous phone tip an ceives criminal and the seeking penalties, civil the Based report. the firming” seeking imprisonment— prosecution precise the discussion newspaper’s of EPA’s is to contest Energy Co. allowed the Admin- modifications, the nature of case, each and law. In the view of facts believes the that istrator modifications reviewing or a original tribunal the Energy isCo. are so extensive that EPA has the might decide court is, That the Admin- an SIP. violation has vio- Energy prove Co. failed a vio- has that there been istrator finds regulation. EPA an SIP lated applicable implementation an lation of One, like Scenario Two: Just Scenario upon “any plan based information a news- reads EPA Administrator the the Administrator.” available Energy Co. stating that report paper 7113(a). The Administrator § U.S.C. undertaking various been has “Notice Violation” gives requisite the modifica- of plant tions to a power permit. without a view law; the these issues of facts She also anonymous receives an phone are irrelevant. Each proceeding in- tip “confirming” the report. Based on volves a hearing, with EPA the brief newspaper’s pre- proffering discussion (a) evidence that of irrefutable cise nature the modifications, an ACO was Ad- properly issued of ministrator believes Administrator based upon “any modifica- infor- tions are extensive Energy (i.e., so mation” Co. is available to her the news- is, paper an SIP. That article and anonymous phone tip) of (b) Energy Administrator that there has Co. been to comply finds refused a violation with applicable an implemen- Energy ACO. Co. is subse- of $25,000 plan quently tation based upon “any per day, and the fined informa- CEO Energy tion available to the is Co. Administrator.” hauled of off 7118(a). prison § years. U.S.C. The Administra- for five tor gives then a “Notice Violation” to short, because an ACO can be issued Energy Co., Co. Energy believing that “on the basis of information available” the EPA has based its finding upon an Administrator, and because noncom- erroneous view the law facts, pliance with an ACO automatically trig- does nothing in response to the Notice gers civil and penalties, criminal Energy Violation. Administrator re- Co. and corporate its officers get never an sponds by issuing a highly detailed ad- opportunity to argue, before a neutral tri- compliance ministrative order pursuant bunal, that the modifications in question do 4,2 7413(a)(1). to U.S.C. not violate an SIP. The EPA is the ulti- At point, story begins mate guilt innocence, arbiter of and the change dramatically courts relegated Scenario are to a forum that con- from One. The provides Administrator ducts proceeding, En- akin to a show-cause ergy Co. hearing, “opportunity to the issue con- of whether fer,” 7418(a)(4), see although has been flouted. 4% As will be dis- “opportunity” really infra, no cussed opportunity this scheme violates the Due at all because the Administrator Process has no Clause and the separation-of-pow- intention changing the principle. ACO. ers Our task for the moment After weeks, Energy merely Co. still to describe com- how the scheme works. few plied ACO, with the terms because B. Litigation This Energy Co. continues to believe that Administrator has an incorrect under- Valley Tennessee Authority standing the law and The EPA (“TVA”), an agency States, of the United facts. responds by filing an action the was pursuant established to the Tennessee assessment civil to Valley Authority Act U.S.C. fines 7413(d), section in addition to referring §§ 831-831ee. One primary respon- of its the matter to the Attorney General provide sibilities is to power electric at for prosecution. only issue in each 831n-4(h). § rates. reasonable U.S.C. proceeding is did, whether Energy Co. satisfy To directive, the statutory TVA fact, in violate the terms the ACO. operates owns and eleven coal-fired elec- Energy Co. does not a have chance to tric power plants,10 most of which were contend the that EPA incorrect built between the 1950s and the 1970s. operates 10. TVA also hydroelec- twenty-nine pumped-storage facility. plants, gas tric plants, four turbine and one 1999, 3, the EPA issued 1970s, November began On TVA in the late Beginning ACO,15 identify requiring TVA to its first the involving projects plan a series per- without any modifications undertaken compo- boiler of various replacement and enter into mits, permits, apply for the plants, which were its coal-fired nents at EPA. with the agreement compliance a 1982 and 1996. out between carried 2000, TVA January May and Between the conclusion 1999, EPA arrived the negotiations, a series of the EPA held and constitute “rou- did not projects that these to the amendments separate to six leading in provided for the as maintenance” tine its sixth After the EPA issued ACO. compo- “physical change” to the exception ACO, to its held firm view amended TVA set definition “modification” of the nent (a) namely, the and the facts law— promulgated regulations in the forth “rou- constituted at issue “modifications” the EPA be- Accordingly, the CAA.12 there- permit a was maintenance” and tine projects triggered New the lieved (b) in no increase required;16 fore not (“NSR”),13 New Source Review Source to the modifica- could traced emissions be (“NSPS”),14 (c) changed tions; suddenly and EPA Standards and Performance to encom- of “modification” its definition of various SIPs. requirements NAAQS, must, among permits other plant typically boiler in coal-fired 11. The tubing piping things, require of the best avail- and and has miles of installation consists of compo- regulated components. technology Some of those for each various control able reheaters, 7475(a). eco- as § are known horizontal nents New and pollutant. U.S.C. waterwalls, furnaces, nomizers, superheaters, sources in "nonattainment areas” modified performs generally cyclones. The boiler must, and NAAQS), (i.e., to meet areas that fail (1) following it combusts two functions: which, construction, permit prior to obtain light; and then it as heat coal and releases things, requires source to among other (2) energy heat into it converts steam the lowest achievable emission rate achieve energy. offsets. provide emissions and to enforceable promulgated regulations, see 40 The EPA has existing reprieve provides a The CAA 12. 51.165, approval of § governing C.F.R. facilities, expense allowing to avoid the them programs. NSR state nonattainment pollution adding controls. state-of-the-art of However, plants are "modified” once requires that the EPA emissions, program NSPS 14. The significantly increases manner that standards, performance based federal issue requirements apply and permitting con- technology,” "best See 42 U.S.C. demonstrated be trols must added. (a) 7411(a)(4) stationary (defining "any categories of new sources § "modification” in, (b) change change may reasonably physical pollution method cause air of, stationary source operation endanger public which health or wel- anticipated to pollutant any air em- 7411(b)(1)(B); increases amount 40 C.F.R. 42 U.S.C. fare. or which results in the itted such source § 60. pollutant previously emission of air emitted.”). regulations provide, howev- petitioned this court for review 15. TVA er, physical change the method "[a] 4, May 1999 ACO on November include: ... Routine operation shall not maintenance, repair, replacement.” battery, replacing a car TVA 16. Much like 52.21(b)(2)(iii)(a). C.F.R. alleged “modifications” contends that maintenance” for the were acts of "routine pro- Congress enacted the NSR 13. In following two without modifi- reasons: designate required gram states operate power plants could not cations the meet the National Am- whether discrete areas lives, useful and the modifica- their entire ("NAAQS”) Quality bient Air Standards tiny comprised only a fraction of the tions pre-con- pollutant and establish each listed outlay necessary to build capital total requirements permitting for new struction plant. maintain each areas that meet modified For sources. pass projects ago, undertaken decades er TVA had violated the CAA when it undertook plant several thereby violating concepts the fair modifications notice permit.19 without a The Administrator found in the Constitution’s Due Process delegated the task “reconsidering” the Clause and administrative common law.17 EAB, ACO to the which she was entitled 4, 2000, May On the EPA informed TVA law. See by to do 1.25(e) 40 C.F.R. going letter that it was to “reconsider” (giving the EAB authority to any exercise the ACO and directed TVA to with it, authority delegated to including the au- the ACO in the peti- meantime. TVA thority to “serve as the final decisionmak- tioned this court for review of EPA’s “no- er, as the Administrator deems appropri- tice of May reconsideration” on 2000. ate”). Thus, EAB, enlisted to serve as a proxy Administrator, for the possessed Rather than issuing a seventh amended the Administrator’s authority to issue the deliberation, ACO after staff EPA took EPA’s “reconsidered” ACO. step a it “exceedingly describes as The EAB crafted a pro- reconsideration unusual”:18 decided to “reconsider” the which, least, say cedure lacked the by “adjudicating” ACO the issue of wheth- virtues of agency adjudications.20 most thorough analysis aFor of TVA's fair no- the sixth Why ACO? 17. amended did it feel claim, Note, Nichols, “Sorry! tice see Jason obliged to issue a "adju- seventh ACO after an Regulation Really What the Means is.... dication” that TVAviolated the CAAwhen it Agencies' Ability Administrative to Alter an undertook various modifications without a Existing Regulatory Landscape Through Rein- permit? possibility One is that the EPA felt Rules, terpretation 80 Tex. L.Rev. 951 that Executive require Order 12146 would (2002). Attorney ultimately General decide the dis- pute, Attorney perhaps General could Respondent 18. See First Brief of at 41. make a better decision based some sort examining Rather than whether the ACO record. TVA believes that the EPA's mo- (i.e., validly sinister, was issued whether the ACO was claiming tive was agen- more that the information”), issued “on the basis of cy simply spur compliance wanted to with its sought liability to examine the issue of simultaneously while thwarting judi- demands (i.e., whether TVA committed violation of by undertaking cial review proceeding CAA). regu- "Neither the CAAnor EPA’s would allege enable the EPA to that since its provides specific process lations adju- to ... making process decision had not been com- ACO,” dicate an administrative order like the pleted, any outstanding ACO was not final. boldly points the EPA out. See Second Brief event, panel our rejected first decision Respondents why at 9. So did the EPA EPA’s contention that TVA could not be a adjudication decide to undertake an notwith- judicial defendant in a enforcement action. standing its observation that the statute does EPA, Valley See Tenn. Auth. v. 278 F.3d 1184 gives not authorize one? The EPA this an- (11th Cir.2002). holding, Faced with this one recipient swer: "In most instances if a dis- why must wonder the EPA did not thereafter [ACO], putes or defies the the EPA can chose typical dispute by treat this case as a bringing bring enforcement action. That enforcement in district court. option was not available here because TVAis agency, a sister federal whom EPA cannot sue 20.This assertion comes with a caveat: Therefore, unique in court. to address this proceeding EAB was unfair to the extent that circumstance, 4, 2000, May then-EPA Ad- adjudication it embodies an that TVAcommit- delegated ministrator Carol Browner to the However, ted a the CAA. ACOs authority EAB her appropriate to craft an upon "any can be based information avail- procedure, reconsideration tailored to these considerably able”—a broad standard that unusual circumstances ain manner consis- requires adjudication much less than an of li- analogous tent agency practice, with and fur- ability. '-'any Viewed as a ther search for infor- directed the EAB to issue a final decision mation,” by September procedural protections granted 2000.” See Second Brief of Respondents begs certainly 9. The EPA's answer the EAB were more than ade- question: Why stop quate. didn't the EPA 1246 proceeding the TVA that EAB admonished the EAB

First, was instructed the ALJ proceed- § [40 22] a formal C.F.R. “is not facts and findings of to not make discovery, not entitled to ing, that TVA typically Adjudications law. conclusions proceeding in this schedule and that the guaranteeing statutory protections have greater dis- significantly TVA granted has from the heads of independence the ALJ’s required hearing rights than covery 5 they serve. See in agencies the 7413(a).”21 133(a), § contrast, § U.S.C. EAB, by CAA is a § 7521. U.S.C. Order, applied 17. The rules were at EAB and is locat- Administrator of the delegatee example, basis. For purely ad hoc on a See Office. Administrator’s ed within the 22.27(a), “Presiding 1992). the (Mar. 1, under 40 C.F.R. 5320, 5320-22 Fed.Reg. ALJ) to ren- required an (e.g., Officer” unavail- Second, effectively discovery was in this The ALJ decision.” der an “initial any compul- entitled to was not able: TVA authority. The ALJ also no such case had had to utilize and therefore sory process EPA’s upholding apply CRP refused that EPA volun- the those only documents requests. to TVA’s document objections was not allowed TVA divulged; tarily Sometimes, sixth likened the the ALJ and the EPA depositions; take several as to “complaint” to a so amended ACO only hefty privilege log its made available record; supplement the the EPA to permit Third, concluded. the hearing after the times, to the ACO the ALJ referred other hearing at the was allowed testimony that “compliance order” used as a mere at the the behest again was “limited” discovery. TVA’s categorization bar Fourth, proceeding Administrator. framework be- Describing procedural rushed, pre- time to giving TVA little was “There’s no employed, the ALJ said: ing than given was less defense. TVA pare its ... it. is an invented about This question hear- of advance notice eight weeks not procedure.... It’s described ad hoc was not of EPA’s case and the basis ing, ... and regulation or statute rule the hear- three weeks before divulged until There is way to look at it. only that’s the finding EPA’s reasoning behind ing. The 7, Transcript of June precedent.” no in- emissions that TVA’s caused projects 74-75, R6-99. Pre-Hearing Conference prior at all divulged not creases were Moreover, was entitled hearing. ultimately TVA “affirmed” most The EAB 15, identify September than two to no more weeks ACO the sixth amended spanning regulatory proceeding matter during Both EAB witnesses concluded, operated granted twenty years. TVA was and after over discovery assumption an to conduct the mistaken any time extensions “adjudication” Fifth, the EAB and an ad its case. issued after hoc prepare ACO they possess different procedures could somehow ALJ manufactured unadjudicated an ACO. The entirely ignoring status than fly, on the employed EAB, consistently called the example, Although of law. concept of rule a “Final Or- EAB decision product of the Consolidated EAB said the EPA’s “compli- prior all ACOs (“CRP”), calling der” while 40 C.F.R. Rules of Practice said that model, The EAB also ance adjudicatory orders.” could serve as directed us to “since Administrator “guidance.” only were to be used rules Order, Compliance we will Auth., reconsider the See, Valley Tenn. CAA e.g., In re Compliance Order’s find- 00-6, (Sept. characterize at 20 No. n. Docket proven in Order”). 2000) (hereinafter ings as must allegations “EAB course, adjudication was, rights precisely because accu- dural position 21. The EAB's contemplated by statute. any proce- is not does not create rate. Section

1247 reconsideration, 8, prevail order to 2002. Valley EPA, See Term. Auth. v. (11th required Compliance Cir.2002). the actions 278 F.3d 1184 We held Order, requests Order as for EAB relief.” that petitions for review pre- of the at 5-6. EAB adjudication thus characterized the ACOs were moot because the something sixth amended ACO as akin to a EAB Order rendered the first ACOs “of complaint, thereby implying that its final no force and effect.” Id. 1191. alsoWe decision, proceeding based that held that possessed TVA independent liti- purported agency adjudication, to be an gating authority; that dispute present- was a different animal. justiciable The EPA’s brief ed a case controversy; that support continues to the fanciful view Executive Orders 12146 and 12088 did not adjudication by the preclude jurisdiction;22 conducted ALJ and and that various EAB somehow petitioners transformed the magically had standing. Id. at 1191— into something By way ACO else. of 1209. Finally, we held that the EAB Or- (which background will be discussed in- der wás a order, final reviewable id. at ), the EPA consistently 1198-99, contended asserting in footnote that “we fra pre-enforcement persuaded review ACOs is are not that a compliance order unavailable because allegedly trig- may ACOs not be reviewed prior to an enforce- ger legal no consequences upon noncompli- ment action.” Id. at 1198 n. 21. After ance with their adjudicated terms. But an reflection, further we no longer believe ACO, the EPA argues, is somehow a dif- that the EAB Order agen- constitutes final ferent creature: “In action, stark contrast to the cy and we therefore withdraw the ACO, the EAB Final part Order constituted a D previous of our opinion to the ex- full and complete adjudication by the EAB expresses tent contrary view. legal and factual According- issues. II. Discussion Finality, Part One: ly, EPA does not contend that ... The Law Finality and Why it Mat- is the kind of action as Congress to which ters pre-enforcement intended to bar review.”

See Second Brief of Respondents, at 1 n. 4. A. Appellate Provision: Why Review Finality Matters Jurisdiction 13, 2000,

On November for peti TVA tioned this court for review of the EAB provides The CAA review of Order 7607(b), to 42 U.S.C. any final EPA action is available “in the provides appellate for review of any United States Court Appeals agency “final action of the Administrator.” appropriate 7607(b); circuit.” 42 U.S.C. We bifurcated peti our Indus., Inc., review TVA’s Harrison v. PPG 446 U.S. review, 578, tions dealing first with 1889, several 100 S.Ct. 64 L.Ed.2d 525 (1980).23 threshold issues in our opinion of January Thus, jurisdiction this court has Harrison, The EPA contended 586, that Executive Order final. See 446 U.S. at 100 requires dispute that this be resolved question S.Ct. at 1894. only before the by the Management Director of the Office Court was whether all final actions were Budget. The EPA also maintained that appealable. presenta- Without an adversarial requires Executive Order 12146 that the At- issue, surprising tion of the it is not that the torney inter-agency General resolve this dis- Supreme Court failed to address the pute. consequences agency action at issue—-a factor that the Court Spear, held Bennett v. 23. The Harrison Court had no occasion to 154, 520 U.S. S.Ct. L.Ed.2d address whether the EPA action at issue in (1997), mandatory to be a finality re- truly agency that case was final action. Both II.B, quirement. part See parties agreed infra. that the decision was Ass’ns, Inc., 121 S.Ct. 531 U.S. ing final constitutes EPA’s if the only (2001), ex- the Court 903, 1 149 L.Ed.2d agency action. plained follows: Overview Doctrine: An Finality B. matter, two conditions general aAs action to be agency satisfied for must be estab has Supreme Court First, mark the action must the “final”: finality: determining factors five lished decision agency’s of the “consummation” action constitutes (1) agency the whether of a not be process must (2) making wheth position; definitive agency’s the —it interlocutory nature. merely tentative of law or the status er the action second, by one action must be the And obligations rights legal affects have been obligations “rights or (3) will which action whether the parties; determined,” “legal conse- fromor which daily on the impact have an immediate (4) flow.” quences will party; regulated operations in law are questions of pure 177-78, whether Bennett, at at 117 S.Ct. U.S. 520 volved; pre-enforcement whether omitted). (citation second Stan- 1168 v. Stan See FTC be efficient. will then, review merely thrown prong, is not dard Oil 232, 239-43, Calif., 449 U.S. test; dard Oil balancing totality-of-the-factors into a 493-95, 488, L.Ed.2d S.Ct., 416 66 101 Bennett fac- The second mandatory. it is especially (1980). prong is The second is one tor —whether Oil, In Standard in this case. important de- obligations have been “rights or which at regulations distinguished the the Court “legal conse- which from termined” or Gardner, 387 U.S. Labs. v. in Abbott issue posi- to our central will flow”—is quences 1516, 149, 1507, 18 L.Ed.2d 136, 87 S.Ct. are not final.24 tion that ACOs (1967), regula ground that the on the 681 Two: Finality, Part III. Discussion of ... immediate a “direct and tions had Have Em- Congress May Not Why day-to-day on the business” effect EPA to Issue ACOs powered they had parties because complaining “ Status Law with the ” Oil, law.’ Standard ‘the status Congress entirely possible It 239-40, 101 S.Ct. at 493. U.S. at inconsequential, the EPA to issue wanted petitioner’s vein, rejected the the Court rather than complaint-like instruments legal had the FTC’s actions argument that is, one That status of with the law. ACOs contend that does not significance: “Socal Congress argument amake solid can had complaint the issuance law, status of with the clothed ACOs never effect, impose except legal practical that ACOs Congress believed and that responding to the burden of upon Socal review. subject not would Although this bur- upon it. charges made substantial, it is different certainly den is In- Avoiding an Unconstitutional A. effect from the burdens legal in kind and terpretation been consid- heretofore has attending what interpret might 242, that a court Id. at One reason agency action.” to be final ered legal way that diminishes in Bennett v. CAA Similarly, 101 S.Ct. fact that the 1154, of ACOs is the significance 117 S.Ct. Spear, 520 U.S. plain lan- dictated statutory scheme (1997), recently was L.Ed.2d which constitutionally re- statute guage Truck- v. Whitman American affirmed in do fix complaint-like documents that that ACOsare not courts have held 24. Several similarly on the second ultimately obligations, find focus that we un- final for reasons part V.A. These convincing. See test. prong of Bennett infra courts, merely ACOs are contend that V.B, pulsive. part infra, explains, As junction-like status only for extremely interpretation “status of law” renders the short period; time any extension must be unconstitutional, statute and courts are made a federal court upon proof based loath to infer a congressional intention to that the defendant has caused extremely legislation. enact unconstitutional pollution. See harmful And in the event of an Pub. Citizen v. United Dep’t States Jus “imminent and endangerment,” substantial tice, 440, 465-66, 491 U.S. 109 S.Ct. the EPA does not have unfettered discre- 2572-75, 105 (1989). L.Ed.2d tion to short-term, enter a injunction-like order. must first resort to a Statutory

B. Structure and the Prob- judicial forum; only if option proves that lem Superfluous Provisions impracticable to be is the justified EPA in issuing To an order. meaning Finally, ascertain true of a EPA is statute, forced to appropriate courts are often “consult with forced to delve State local into the and attempt structure of a authorities and statute and the to con- firm the accuracy in provisions context which different the information on are See, proposed e.g., Tinoco, written. to be United v. taken is States (11th 1088, Cir.2002). 304 F.3d based.” 1105 Us ing this methodology, it apparent becomes Congress thus authorized the issuance interpretation an that give that would EPA orders law, with the status of but

ACOs the status of law renders several only in an extremely narrow setting (public statutory provisions useless or absurd. (if emergency), as a last resort in suing federal impracticable), court is very for a § U.S.C. 760S limited time (sixty days), and after the

Perhaps most telling is 42 U.S.C. EPA confirms its information with state 7603, § which gives special the EPA and local Why authorities. would Con- “emergency powers.” pollution When a gress cabin EPA orders in this way if the presents source an “imminent and sub EPA can issue an always identical order stantial endangerment public to health or (i.e., ACO) an pursuant 42 U.S.C. welfare, environment,” or the EPA all, § 7413? After section 7413 ACOs are may bring suit appropriate relief. If it duration, an infinite they and can be practicable is “not prompt pro assure going issued without to court—even if re- public tection of health or by welfare” course to a “impracti- forum is not judicial forum, recourse to a then the Moreover, cable.” section 7413 can ACOs may issue an on its “order” own initiative. issued “on be the basis of information” for, This order in most, “remains effect” a committed; violation has been there sixty days. permanent To injunc secure no need to worry about whether the tion, the EPA must sue in district court. violation constitutes rare public emer- If the order is flouted alleged viola gency, there is no need to consult sate tor, the full panoply can be sum, local authorities. section 7603 imposed, imprisonment including pursuant congressional evidences permit intent to 7413(c)(1). § to 42 U.S.C. the EPA to issue orders with the force of law, only long It but so rigorous is clear require- from text of section 7603 Congress ments are Section apparently enabled the met. 7413 EPA to issue all requirements. erases law, orders those only status in but an extremely narrow context. There must £ U.S.C. m 7W be an emergency rising to the point of an “imminent and endangerment.” 7413(c)(1) substantial Section “any per- states that Moreover, the EPA order attains an in- knowingly who son violates ... order sense: ACOs are 7413(a) shall, makes provision this ... ] U.S.C. [42 devices are merely complaint-like fíne conviction, by a punished to avoid recourse effort an used 18, imprisonment to Title short, are, begin- They litigation. When or both.” years, exceed for not to Lloyd process. See bargaining of the ning mandates provision literally, read EPA, F.2d Roofing Co. v. FryA. of an terms knowing (8th Cir.1977); Const. Asbestec 890-91 ques- imprisonment. can lead

ACO (2d EPA, Servs., F.2d Inc. v. not whether court is for the district tion Cir.1988). noncompliance with But if has, fact, in viola- polluted the defendant criminal civil and really trigger ACO can Rather, issues before an SIP. tion of does the incentive what penalties, then (a) an ACO simply whether are the court regulated to “confer” with EPA have (b) the defen- whether issued has been is, in what EPA can issue If party? with its terms.25 complied dant rarely effect, the EPA would injunction, least, is, say the interpretation This compromise. compelled to feel the rest of reads the one when bizarre re- provisions criminal The other statute. Practice Agency C. that a de- prove the Government quire of its interpretation agency’s An knowingly re- or negligently fendant deserves defer enabling legislation often 42 pollutants. See hazardous leased U.S.A., Natural Inc. v. ence. See Chevron (5). 7413(c)(4), Why would Con- U.S.C. Inc., 837, Council, U.S. 104 467 Res. Def. the use of the requiring gress bother with (1984). The 2778, 81 L.Ed.2d 694 S.Ct. found in rights procedural panoply full in United States decision Supreme Court’s Procedure of Criminal Federal Rules the 218, 121 Corp., 533 U.S. S.Ct. v. Mead simply issue an ACO the EPA could when (2001), 2164, 292 held that 150 L.Ed.2d and, information,” upon upon “any based to those in is confined deference Chevron ACO, a con- obtain with the noncompliance its agency renders in which the stances matter, EPA has a the For that viction? in the course of rulemak interpretation proving a viola- to avoid strong incentive so, Even adjudication. proceeding or ing in or SIP regulation an tion of EPA completely ignore not would most courts in proceeding dis- including a civil organic interpretation of its agency’s forum— proceeding an administrative trict court interpretation is if that ad statutes —even If the EPA issues an an ALJ. before litigation rather in course vanced arduous task ACO, always avoid the it can adjudication. agency rulemaking than court. The proving litigating long taken the The EPA has loophole of to be a appears provision ACO lack status law ACOs position that order. highest subject pre-en- therefore not and are provides ACOs also Turbines Inc. Section 7413 Solar forcement review. (3d Cir.1989), party regulated until the Seif, take effect F.2d 1073 cannot v. 879 that the section argued confer” with “opportunity example, has had an 7413(a)(4). “merely issue Why compliance order at 42 EPA. U.S.C. See best analo- position [is] If EPA’s language? statefd] include this Congress did complaint.” at 1079.26 The law, to a Id. gized then not have the status ACOs do terms of an it regulated party failed 25. in which the In most cases ACO. view of EPA has an incorrect believes facts, freely party will admit the law or conveniently appears to for- have 26. The EPA EPA took a position similar in this case decision to issue an ACO. The existence argued when petition TVA’s first of this fact belies the notion that Congress for review should be dismissed because intended to enact a statute in which ACOs ACOs have no effect and are thus not have the force of law. final actions: “The ... ACO is in might One respond to this observation the nature of an administrative ‘com- ” by saying that does, this case fact, plaint.’ See have EPA’s Motion to Dismiss record, and, in any event, TVA’sPetition for Review of the Nov. 1999 courts are May always ACOs free to again: And remand for the creation of a “Courts have consistently that, held be- record. See Indus., Harrison v. Inc., PPG cause they are self-executing and in- U.S. 100 S.Ct. 64 L.Ed.2d compel stead only upon enforcement (1980). But this retort misses the EPA, compliance orders issued un- point, avoiding argument based upon der environmental statutes as the likely congressional intent and relying Clean Air Act and Clean Water Act are particularities of one bizarre (citations not ‘final’ under the APA.” Id. case. point is this: Congress created omitted). again: And ACOs “do not im- a statutory scheme which ACOs are pose legally binding rights or obligations issued without any sort of adjudication, part recipients” their they and, accordingly, (until the EPA has never are “not considered ‘final’ purposes now) undertaken a proceeding that even Id. review....” at 26. And marginally an adjudication resembles prior again: “[A]bsent an enforcement action to the issuance of an ACO. Given this initiated the EPA and a subsequent fact, Congress did really think a that viola- order, court findings the and conclusions in tion of the terms of an unadjudicated ACO an administrative order operative no have (which them) are 99.9% of trigger could effect.” Id. at 27. civil and penalties? criminal If Congress

D. The intended Problem that ACOs have law, Judicial Review the force of of then Congress surely would have facilitat- Congress Had wanted ACOs to have the judicial ed review. Yet in almost every law, of force it surely would have made ease, the EPA go does not making about a subject judicial them to review. And had record, and the statute clearly counte- Congress judicial wanted ACOs, review of nances this result. it surely impossibility would required have the EPA to judicial in a review this setting create record that would judi- demonstrates facilitate the cial review. Congress But unlikelihood that clearly Congress ever be- contem- plated that ACOs would be lieved that issued noncompliance without with the terms record, a and so there would be no of an way ACO could trigger civil and criminal that a reviewing court could review penalties. the gotten noncompliance that with section 7603 stake position EPA out a in court that ACOs can imposition to the lead of criminal position differs from the it takes when it is- penalties. Turbines, See Solar 879 F.2d at sues an ACO a regulated party? possi- One contrast, By the cover letter that ac- bility is that the EPA likes to have its cake and companied the ACOs in Solar Turbines stated eat it employing provisions the harsh too— "[fjailure that with this Order confronting CAAwhen potentially a recal- subject could your firm to civil and criminal party, citrant but hesitant to reveal the liabilities to the Clean Air Act.” Id. significance of in ACOs court for fear that the Davis, at 1080. See Andrew also I. Judicial very part of the CAA that makes ACOs so Orders,

Review Compliance Environmental effective will be down. struck 189, (1994). 24 Envtl. L. Why 218-21 does re- traditional rigorous than appeals less a court how wonder

alsoWe adjudications under agency that view of instructions with remand could facts adjudication since the Administrator’s APA. pre-ACO Whether conduct EPA that require adjudicated not an dearly does thin to warrant are too the statute prior adjudication has, fact, an in vio- EPA an been undertake that SIP finding Perhaps ACO?27 are the issuance far as ACOs as lated is. irrelevant a statement in to issue supposed court take issue We therefore concerned. following: says the that remand order its are appeals courts of that the the notion that the EPA says statute “Although the adjudication agency free to remand for adjudication, pre-ACO conduct need not violated has been when whether an SIP A remand do so.” that should we think context. in the ACO issue is irrelevant that dispute adjudicate with instructions effect, an amendment would, constitute History Legislative E. judicial fíat.28 the statute CAA, history of the when legislative assuming, question: ask this Finally, we that conjunction with several cases read (a) have the status of ACOs arguendo, that sup- history, backdrop to form the (b) EPA can make the a court law not Congress did ports the notion adjudication, what pre-ACO conduct of an ACO consti- that the believe issuance appeals the court issue would be the And ACOs action. since tutes final adjudication? pre-ACO review final, it of law must be with the status appeal, litigants have Throughout intended unlikely Congress seems adjudication could be EPA’s assumed of law. have status that ACOs “arbitrary proves if it to be overturned enactment Prior to CAA’s in accor- capricious or otherwise [and] Committee reported by the Senate the bill See 5 U.S.C. with the dance law.” (2d Works, Cong. S. 91st on Public 706(2)(A). long valid so But ACOs are 116(a) Sess.1970), section contained —a (a) thirty requisite waits the Administrator provision directed issued; a Notice of Violation days after person order to an abatement to issue (b) “opportunity to grants EPA an the being enforced in violation an SIP (c) Administrator; and the confer” also The Senate measure by the state. the an ACO “on basis EPA issues the pro- language specifically contained to the Adminis- information available judicial pre-enforcement review vided for party has violated regulated that a trator” By orders. time of abatement 7413(a). 42 U.S.C. CAA. See emerged from the Conference measure the Adminis- is whether

only inquiry real Committee, Act con- 113 of the section “any information” —a possessed trator subject pre- on the language tained no than rigorous is less standard Drawing upon this review. enforcement found cause” standard “probable deletion,” held Eighth Circuit certainly And it is “silent setting. law criminal course, case, vary would from case to dures procedural rules would the EPA And what 27. all, employ depending the EPA is not on the circumstances. on remand? After adjudica- statutorily required conduct appeals Perhaps future courts will tion. Indeed, ulti- of a record is absence attach, or- appendix to their remand as Judge Solar mately why Becker concluded in ders, judge-made procedures that the a list of final 7477 orders are not that section Turbines reviewing ought adopt that the so (Beck- agency 879 F.2d actions. See sufficient to conduct court can have record er, J., concurring). proce- meaningful appellate These review. that Congress preclude intended pre- The court conceded that the ACO was a enforcement review of Lloyd ACOs. See final and definitive statement agen- Fry Roofing EPA, A. Co. v. 554 F.2d cy’s position, but it believed that the other (8th Cir.1977).29 890-91 Eighth Cir- Standard Oil weighed factors against find- cuit also pre-enforcement judi- noted that ing that the ACO was a final action. See cial review “wholly would be inconsistent Asbestec, 849 F.2d at 768. The court fo- with the enforcement mechanism estab- cused first on the second Standard Oil by Congress” lished “[p]re-en- because factor, which requires the reviewing court forcement severely review would limit the analyze the effect petitioner on the ab- effectiveness procedure conference sent review. The Second rejected Circuit [provided 7413(a)(4)] by section aas means Asbestec’s claim that it would suffer ad- to abate violations of the without Act re- verse effects sufficient to deem the judicial sort to process.” Id. The court final; it was not enough for Asbes- rejected interpretation proffered by tec to show that would be “stigmatized” the regulated party, because that interpre- or suffer opportunities” “diminished ab- tation would allow the EPA to “easily side- pre-enforcement sent review. Relying Id. step possibility pre-enforcement re- precedent, the court stated that “[the by view suit in filing the district court word] ‘effect’ in determining whether an prior without issuance of an order....” agency’s action is final only denotes the words, Id. at 891. In other allowing pre- imposition of an obligation, the denial of a enforcement review would create right, or some other establishment of a an enormous incentive for the EPA to legal relationship.” Id. (citing Chicago & head straight to federal court rather than Lines, Air S. Inc. v. Waterman Corp., S.S. using the dispute alternative resolution 103, 112-13, 333 U.S. 431, 436-37, 68 S.Ct. mechanism established Congress. Why (1948), 92 L.Ed. 568 and Abbott Labs. v. issue an ACO when doing so would enable Gardner, 136, 152-53, 387 U.S. 87 S.Ct. regulated party petition to file a 1507, 1517-18, (1967)). 18 L.Ed.2d 681 review delay enforcement long as The court therefore held that “Asbestec’s possible? The EPA would be better off to ‘stigma’ contention ... is without merit hide its cards until it brings an enforce- because neither its duties nor its obli- ment action in federal court. gations have been altered compli-

Other courts similarly concluded that ance order.” Id. at 768-69. The court pre-enforcement review is unavailable un then turned to the third Standard Oil der Circuit, the CAA. The Second factor and presented noted the issues example, considered a highly case analo for review were not purely Being legal. gous to the case at hand. factual, See Asbestec mostly “reviewing or- compliance Servs., EPA, Constr. Inc. v. 849 F.2d 765 would ordinarily place ders a significant (2d Cir.1988). Looking Supreme to the appellate burden on courts.” at Id. 769. Court decision in FTC v. Standard Oil Co. The last Standard Oil factor —whether California, 232, 239-43, 449 U.S. 101 judicial immediate review would foster of 488, 493-95, S.Ct. (1980), L.Ed.2d 416 agency judicial and economy similarly — guidance, the Second Circuit held that militated against finding compli- that the the ACO was not a final agency action. ance order was final. The court asserted Lloyd 29. Fry Roofing, In A. regulated hand, par- the from the case analysis at the of court’s ty sought injunction prohibit that would legislative the history CAA's policy and of the enforcing EPA from a Notice of Violation. favoring nonjudicial disputes resolution of Although procedural posture the was different instructive. 113(a) ... are not section [and] degree of section have some must that “the EPA meaning of the actions within ‘final’ public [envi- from the protect rein to free (Dec. 307(b)(1).” Rep. 101-228 S. delay the section introduce To harm]. ronmental 1989). Report explained The Senate of administrative of court review proposal public the Senate potential policy behind the ameliorate taken to (a) Con- EPA enforce- facilitating prompt would conflict with one of health hazard (b) preven- ... the promotion the to ‘accelerate and aim ment gress’ Id. pollution.’” of air economy: and control tion 7401(b)(2)). The 42 U.S.C. (quoting administrative Any judicial review pre- that “immediate concluded thus court the only at carried out may orders orders compliance review enforcement person or another government time the nor enforce- efficiency neither serve[s] ... such orders. Other to enforce seeks Air Act.” Id. of the Clean ment the wise, for violations enforcement indefinitely pend delayed pre- Act could be held that Circuit also Third courts review of the Federal ing judicial Os is avail- of AC review enforcement Turbines, [Asbestec, Turbines appeal. See Solar Solar under the CAA. able Cir.1989). (3d EPA, Electric,31 Roofing A. Lloyd ] F.2d 1073 Inc. v. Union that “re- There, an ACO com the EPA issued emphasize that this clarification of con- cessation the immediate Act. EPA quirted] goals the of the ports with tur- gas operation the ability proceed struction to ex possess the and/or must Id. at Caterpillar Tractor.” facility bine at Allowing violators. against peditiously court, reason- approving 1076. administrative review of an immediate Third prior and a Eighth Circuit ing signifi appeals would in a court of be- policy opinion,30discussed Circuit enforcement, and could sus delay cantly deny implicit decision Congress’s hind underlying viola correction of pend review: pre-enforcement true years. particularly This is tion for intrude would challenge [an ACO] A court defers where a district cases sequence created procedural the court of ruling by pending decision receiving no- whereby parties Congress appeals. Equally undesirable encour- noncompliance are tice of first at the district that courts both prospect problems with their aged resolve might decide appeals and court of levels informal, less EPA an states at the same the same to consider issue becomes costly manner. Judicial review short, resulting from delays time. EPA, failing ef- appropriate when adminis pre-enforcement review compromise, negotiation forts only conflict with orders not trative subjecting steps at enforcement takes pollution be statutory air directive that penalties. facility consequential fashion, expeditious but in an prevented ability protect Id. at hinders the it also hazards from the environmental public amendments to the CAA When pollution. air associated with a bill supported proposed, Senate were opposite of the provision exactly the with a is, the in 1970. That supported

bill ju- promote will also This amendment explicitly proposed that the CAA Senate economy. present, At burdens dicial that “orders issued provide (8th EPA, EPA, v. 593 F.2d Elec. Co. 522 F.2d Union Penn Power Co. v. 31. See West 30. Cir.1979). (3d Cir.1975). appellate the Federal 307(b)(1) courts are signifi- provides pre-enforcement for cant. Given many the fact that chal- review of administrative orders. As not- lenges to administrative orders involved ed in 101-228, Rep. Sen. questions, factual district court review in Second, Third, and Eighth Circuits have an enforcement proceeding is the better already and, resolved and this issue forum than is review in the court of such, except with respect judicial re- appeals. view of administrative penalty assess- (Dec. Rep. 20,1989). S. See 101-228 orders, ments and there is opportuni- no Although the Conference ul- Committee ty pre-enforcement review and no timately did adopt not proposal, the Senate new statutory language addressing the possible it is not to draw the same infer- issue is necessary. from “noisy” ence deletion in 1990 as See Statement Senate Chafee-Baucus of one could draw about the “silent” deletion Managers on the House-Senate By Confer- backdrop had ence Agreement, 136 Cong. 36,085 Rec. by judicial been created holding decisions (1990). Congress thus decided already CAA precluded pre-en- pre-1990 version of the CAA Asbestec, already pre- forcement review. Citing Solar Turbines, pre-enforcement cluded Electric, review, Union Lloyd A. making it Fry Roofing, the Report unnecessary Senate to “clarify” noted that its intention to “several courts” already preclude had pre- pre-enforcement held that review in the enforcement review was foreclosed. For 1990 amendments. reason, the Report described the TV. amendment Discussion provision Finality, as a designed Part Three: of “clarify” Why and “confirm” that ACOs were Plain Language the CAA of subject

not Does, to pre-enforcement Fact, review. Give ACOs Status The Senate only sought to make more Lawof clear what had already been established We have at our disposal several vein, decisions. In a similar two tools that might guide our interpretation of managers Senate on the Conference Com- the CAA: the constitutional avoidance can mittee for the 1990 CAA ex- amendments on, statutory structure, legislative history, plained the reasoning behind the Confer- agency practice, problem and the judi

ence Committee’s deletion as follows: so, cial review. no Even canon statuto The conference agreement adopts the ry interpretation trump can the unambigu provision. 307(b)(1) House Section ous language I.A, statute. part As grants the Act jurisdiction to the federal supra, clear, makes several provisions circuit courts appeal to review “final the CAA undeniably action” imposi authorize administrator. The term action,” however, “final tion severe civil and criminal only defined by a based solely non-exclusive list particular upon noncompliance with an kinds of actions. Several courts have ACO.32 Supreme Although Court has specifically considered whether section never precise addressed meaning of 42 32. The ("CWA”) Clean Act Water many uses “compliance (d) entitled orders.” Subsection provisions that are identical to those found in provides of the CWA "any person who the Clean provision Air One Act. of the CWA violates order issued the Administrator states that the Administrator can issue com- (a) subject ... subsection shall be to a pliance orders "on basis of informa- penalty $25,000 civil to exceed per day tion available him.” 33 U.S.C. each violation.” 1319(a)(1). Indeed, § the entire subsection is

1256 compliance a order Thus, obey failure the as 7413, scheme § it described U.S.C. criminal, civil, recipient the subjects follows: actions, includ- administrative enforcement specified cer- also amendments The 1970 $25,000 per day.”). of ing penalties up The Act mechanisms. tain enforcement compliance order EPA to empowered Thus, very good although are rea- there plan, implementation applicable with an Congress did not concluding sons 7413(a) (1982 ed.), § 113(a), § 42 U.S.C. said, unambiguous lan- what it mean against relief injunctive and to seek CAA, by the a decision Su- guage of an EPA plan or violating the source commentary Court, scholarly preme amended, 113(b), 42 order, U.S.C. § sup- in their subject united stand ed.). addition, 7413(b) (1982 In Con- § proposition: Con- following port of criminal gress prescribed a scheme which non- established gress orders, plans of violations knowing issued “on' with ACO compliance ed.). 7413(c) (1982 § 113(c), 42 U.S.C. can available” information basis States, v. 496 Corp. United Gen. Motors penal- of severe civil imposition lead to 2528, 2530, 533-34, 110 110 S.Ct. U.S. if EPA is imprisonment ties and —even (1990). Thus, the Court is 480 L.Ed.2d illegal pollu- proving an act of incapable impression apparently under in court. tion speaks for it- of the CAA plain language trig- an ACO can noneompliance with self: Unconstitutionality ACOs That V. penalties. criminal ger civil and Law Have the Status of vein, con- leading treatise In a similar A. Cases “[fjailure [an cludes the constitution- No court discussed independent violation under ACO] [an] in which an inherent in scheme al issues Environmental See Law CAA].” [the (a) can make agency branch executive (Sheldon M. Novick et 9.22 Protection “any information finding, on the basis 2003). eds., At least one law review al. available,” law has been violated that the has made a similar assessment. article which, (b) if compliance order issue a Davis, I. Judicial Review Andrew See imposi- automatically to the ignored, leads Orders, 24 Compliance Environmental perhaps penalties and tion of severe civil (“Regardless 194 Envtl. L. imprisonment. underly- alleged the merits addressed issue The cases have order, disregarding the ing compliance review of pre-enforcement of whether subjects recipient potentially grouped can into is available33 addition, ACOs daily penalties. accruing category first categories. The con- imposed.... two penalties may be criminal Browner, Gatuna, Cir.1988); Laguna Inc. v. majority have held that 33. The vast of courts Cir.1995); (10th Child v. United F.3d 564 CAA and 58 pre-enforcement review of CWA 1994). States, (D.Utah See, e.g., F.Supp. 851 1527 compliance orders is not available. EPA, typically ACOs do held that Lloyd Fry Roofing Courts have Co. v. 554 F.2d 885 A. action, Train, Cir.1977); and that (8th final Con- constitute West Penn Power Co. v. (3d Cir.1975); impliedly precluded pre-enforcement re- gress S. Pines Ass’n v. 522 F.2d (4th Cir.1990); States, review would undermine view because United F.2d EPA, Congress’s to facilitate resolution of intention Group, 902 F.2d 567 Inc. v. Hoffman EPA, gen- See Cir.1990); disputes through nonjudicial means. (7th Co. v. Union Elec. Davis, Turbines, (8th Cir.1979); erally, Judicial Review Andrew I. F.2d 299 Solar Inc. Orders, Cir.1989); Compliance (3d Envt’l Environmental Seif, Asbestec v. 879 F.2d 1073 (1994). Serv., EPA, (2d L. 189 849 F.2d 765 Const. Inc. v. 1257 (D.Utah 1994) (“[I]n in sists of those cases which the courts 1536 the event fact that recognize the ACOs have the actual assessment of administrative grapple status of law but fail to with the penalties or a enforcement action problems constitutional that from arise 309(a), Plaintiffs would have an legal this status. These cases include opportunity additional to challenge the Allsteel, EPA, (6th Inc. v. 25 F.3d 312 court.”). findings EPA’s in the district If Cir.1994), EPA, and Alaska v. 244 F.3d correct, this view were then the underly- (9th Cir.2001) only two cases that — the ing conduct that triggered the issuance of have, knowledge, to our ever held that the ACO would be the ultimate basis for judicial review of an EPA order under the liability, noncompliance not with the ACO. prior CAA or can CWA be had to an EPA The ACO would fix legal obligation no enforcement proceeding.34 whatsoever. Any judicial manipulation category The second consists of those the statute that permit, would in the con- cases which courts have underappreciat- text an EPA enforcement suit alleging a legal significance ed the of ACOs. This ACO, violation of an an inquiry into the can, turn, category be divided into two underlying i.e., whether the al- violation — subgroups. The first subgroup consists of leged polluter actually undertook a “modi- cases in which regu- courts conclude that a fication” permit without a or otherwise attack, party lated can in a subsequent violated an SIP or EPA regulation —would proceeding, enforcement and fac- have the effect of making the ACO nonfi- tual bases for the EPA’s conclusion a nal.36 Only if noncompliance with the See, CAA violation has been committed.35 terms of an ACO indepen- amounts to an e.g., EPA, A. Lloyd Fry Roofing v.Co. (thus dent violation of the CAA triggering (8th Cir.1977) (“[W]e F.2d are sanctions) civil and criminal can persuaded by the legislative history of the an ACO be said to have a “legal conse- Clean Air Act Amendments of 1970 to hold quence.” only And then can an ACO be plaintiff authority lacks to initiate and considered final. It is surprising not litigation maintain challenge the EPA’s no court in subgroup has found that order ... plaintiff and that must assert its ACOs constitute final agency action. claims as defense or in any counterclaim The second brought subcategory by the Administrator consists EPA under those section 113 of the Air cases which Clean courts read out the Act.”); States, Child v. United F.Supp. penalty provisions statutory of the scheme. surprising 34.It is not Although these courts failed this view is understandable in light requirement to deal of the with the .Constitution's of due constitutional issues we process separation-of-powers and the princi- especially process the due issue—be raise — ple, statutory authority there is no for such an "deprivation” cause liberty property no interpretation. actually at issue until the Government im poses penalties subsequent in a enforcement 36. One treatise contends that were courts then, proceeding. might appear, It that the wrong to hold that ACOs are not final process due squarely issue before the faulty prem- actions. The authors debunk the reviewing court when it is an ACO. Howev court, proceed ise that "[i]f EPA does er, subject jurisdiction matter ultimately hing challenged order can be at that time.” Law validity es of an enforcement 9:22, Environmental Protection at 9-100 law, gives scheme that ACOsthe status (Sheldon eds., 2003). M. et Novick al. Rath- obligation the courts have an to assess their er, point the authors out that "[flailure subject jurisdiction sponte. matter sua See indepen- with such an order is [an] C.I.R., 868, 896, Freytag v. 501 U.S. statutes,” 111 S.Ct. many dent violation under 2631, 2648, (1991). 115 L.Ed.2d including the CAA. Id. 1258 obligations parties’] regulated Turbines, [the F.2d alter Seif, v. 879 Inc.

In Solar Act, a suit Cir.1989), bring EPA can (3d the court held and 1073, under 1081 order, of the statute language [the an plain or not issues “[t]he that whether conse- any adverse identify not faced with parties] does are not regulated 167 ad- violating a section from quences just EPA from because threat greater However, as several ministrative order.” rather negotiate solution EPA seeks observed, 42 U.S.C. have commentators proceedings immedi- civil than to institute 7413(c)(1) of an that a violation provides § 716 n. 3. ately.” Id. at 167, § 42 to CAA issued 7477, Law a crime. See § U.S.C. B. Constitutional Violations (Sheldon § 9.22 Protection Environmental statutory scheme estab eds., 2003); Andre I. al. et M. Novick the head of Congress which by lished —in Davis, Review Environmental Judicial power branch an executive 189, Orders, 220 24 Envtl. L. Compliance the status of law an order that has to issue (1994). faulty premise enabled This informa finding, “on the basis after that the ACO to conclude Third Circuit available,” violation has CAA tion complaint-like instrument merely a was to the Due repugnant been committed—is Turbines, significance. Solar legal no Fifth Amendment.38 of the Process Clause The court Asbestec at 1081.37 879 F.2d impose can severe Before the Government EPA, Services, v. Inc. Construction penalties, the defendant civil and criminal (2d Cir.1988), similarly concluded F.2d 765 hearing fair before to a full and is entitled party failed to show regulated meaningful “at a time impartial tribunal obligations have been duties [or] that “its Armstrong manner.” meaningful order.” Id. at in a by compliance altered 552, 1187, Manzo, 545, Pines Finally, the court Southern 85 S.Ct. 769. v. 380 U.S. States, 912 F.2d 713 (1965). v. United 1191, Associates As shown in 14 L.Ed.2d 62 (4th Cir.1990), issued held the ACO One, I.A, part supra see Scenario nonfinal. The the CWA was pursuant to deprives by Congress scheme enacted simply not its conclusion court based opportu party of “reasonable regulated after the CWA was modeled the fact that present evidence”39 nity to heard and be meant “Congress therefore the CAA and (a) crucial issues: wheth two most on the compliance judicial review of preclude underlying the issuance of conduct er the just it meant to under the CWA orders (b) and wheth actually place took the ACO review preclude pre-enforcement amounts to a CAA alleged conduct er the 716. Id. at the CAA and CERCLA.” violation. Rather, misguided also held a the court patent with this viola Confronted status of ACOs: understanding of Clause, Due Process tion of the compliance order does “Because the compli- empowers to issue a the EPA echoes this which law review article 37. At least one law, Note, the status of because ance order with Clean Air Act view. See incorrect 7603, us. Section provision is not before 1990: Permits Amendments Enforce- Law, emergency only situations Dayton applies U. the New ment-The Guts of period in which (1992) sharply the time limits function of C‘[T]he L.Rev. status, certainly injunction-like put ACOs have compliance the source on order is Constitution than the offensive to the may taken if com- less other action notice that 7413. 42 U.S.C. quickly.”). scheme established pliance is not achieved 414, 433, States, 321 U.S. constitutionality 39. Yakus v. United We decline to assess 660, 671, (1944). 88 L.Ed. 64 S.Ct. provision in 42 U.S.C. found might respond be inclined to that it can Benson, See Crowell v. 22, 55-60, 285 U.S. always “save” the statute voluntarily 285, 293-97, 52 S.Ct. 76 L.Ed. 598 undertaking adjudication prior to the (upholding the plenary power of an admin- issuance of an ACO. This is a fallacious istrative agency adjudicate certain ques- argument, because the statute clearly es- tions of fact significant because Article III tablishes a scheme in which the decision to review of and factual pre- issues was ACO, an issue like the decision to file a served); Pipeline, Northern 458 at U.S. court, civil suit in district is made not after 85, 102 S.Ct. at 2879 (holding that Article adjudication full-blown of whether a III review of the bankruptcy court under CAA violation committed, has been but “clearly erroneous” standard was not rather on the of any “basis information rigorous enough to statute); save the id. at available to the Administrator.” This is 23, n. 70 102 S.Ct. at n. 2871 23 (noting not an area in organic which the statute that when “[even] Congress assigns [‘pub- has vague standard, set a and there is rights’] lic matters to agen- administrative simply no room for administrative discre- cies, courts, or to legislative general- has tion on point. cannot, The EPA ly provided, and we suggested have it may short, amend the statute. required provide, be judi Article III Far from rendering statutory review”); cial 91, id. at 102 S.Ct. at 2882 scheme palatable, pre-ACO more adjudi- J., (Rehnquist, concurring) (agreeing with cation only would highlight another consti- plurality that scope judicial re tutional problem with the CAA: the statu- view established the statute was insuffi tory scheme unconstitutionally delegates statute); cient to save the 115, id. at 102 judicial power to a non-Article III tribunal. (White, J., S.Ct. 2894 dissenting) (opin See N. Pipeline Constr. Co. v. Marathon ing appellate “will go review a long Co., Pipe 50, Line 2858, 458 U.S. 102 S.Ct. way toward insuring a proper separation (1982). 73 L.Ed.2d 598 The statutory powers”); Commodity Futures Trading relegates scheme III Article in- courts to Schor, v. Comm’n 478 U.S. significant tribunals. The district courts 3245, 3258, (1986) S.Ct. 92 L.Ed.2d 675 serve as forums for the EPA to conduct (upholding a CFTC adjudicatory scheme hearings.40 show-cause And the courts of after noting Congress permitted appeals are similarly emasculated, review- meaningful judicial review); see also Rich ing only whether the ACO has validly been Fallon, ard H. Legislative Courts, i.e., Ad whether the Administrator Of issued — Agencies, ministrative III, based her and Article decision to issue the based ACO (1988) Harv. “any L.Rev. 916 information” as opposed (concluding to no information meaningful judicial at all.41 Without meaningful review III Article judicial review, the scheme a necessary works an un- court is and sufficient require delegation constitutional judicial power. ment Constitution); under the Richard B. is, regulated essence, 40. The party phone tip forced appeals court of be would —the why to show cause it should not impris- be deny forced petition each for review and subjected oned or to civil for violat- hold that each ACO validly had been issued. ing the EPA’s order. ACO, regard With to the first the court of appeals stop would be forced analysis its If a appeals court of were confronted finding after "any that the information” stan- two ACOs—the first issued after a formal ad- met; dard had been inquiry further into judication that the regulated party committed whether the EPA had "substantial evidence” a CAAviolation and the second after issued of a CAAviolation would unnecessary "any Administrator obtained information” unauthorized. such as a newspaper clipping anonymous Air “on of the Clean Act Solimine, prohibitions Shoring E. Michael Saphire & Id.; also see any information.” Doctrine basis of Court Legislative III: Up Article 7413(a)(2) Era, word (omitting B.U. v. Schor CFTC U.S.C. in the Post judicial in the (1988) (asserting comparable language “any” L.Rev. 85 from a neces- III court is to en- Article failure concerning “State provision review requirement of Having insufficient sary permit program”). but force SIP power). delegation any informa- “on the basis of concluded occurred, the a violation tion” that Conclusion VI. can either: Administrator unconstitu Air Act is The Clean compliance requiring an order issue noncompli that mere extent the tional to at prohibitions or requirements with the can be the of an the terms ACO ance with 7413(a)(1)(A), issue, §§ 42 U.S.C. civil imposition of severe for the sole basis (a)(2)(C) (a)(3)(B), prohibiting or and Therefore, ACOs penalties. and criminal modification, or construction meet they do not finality because lack 7413(a)(5)(A); § thus the Bennett test. We two of prong (2) or- penalty an administrative obtain juris lack appeals that courts conclude hearing procedures the by following der of ACOs. validity the to review diction Act, 5 Procedure of the Administrative it has what it believes must do The EPA § see 42 U.S.C. 554 and U.S.C. along namely, all to do required been — (a)(3)(A), (a)(2)(B), 7413(a)(1)(B), §§ violation of a CAA existence prove the (d); (a)(5)(B), and court, viola including alleged the district (3) court bring a civil action district issue the spurred the tion that fines, injunctive relief and this case. ACO in (a)(3)(C), 7413(a)(1)(C), (a)(2)(C), §§ DISMISSED. PETITIONS (a)(5)(C), (b); and/or (4) Attorney General request BARKETT, Judge, specially Circuit action, criminal a commence WILSON, joins: Judge, concurring, Circuit 7413(a)(3)(D). § reconsideration, agree I Upon scheme, statutory the first Under not have that this court Judge Tjoflat does issuing an federal option for the EAB’s order enforcement — jurisdiction to review order, the EAB’s order like administrative that, that TVA its determination enforce “any pursued be based before us—can Act, Air U.S.C. the Clean has violated available,” without giving information appropriate procedure seq., § 7401 et opportunity to chal- alleged action in violator original EPA to file an is for the the or- court, in most information which just lenge as it does district Although it has determined compliance is based. other instances der of has occurred. See “challenge” violation the Ad- can alleged violator 7413(b) civil (describing § U.S.C. by conferring with conclusion ministrator’s enforcement); Brief of see also Second him/her, does not require the statute EPA’s (explaining Respondents argu- any consider such Administrator enforcing action for course of normal at- brought to ments or evidence his/her order). compliance effort beyond good that of a faith tention 7413(a)(4). § comply. See U.S.C. notes, 42 Tjoflat U.S.C. Judge As Thereafter, statutory provides scheme (3) (5) 7413(a)(1), provide that each §§ criminal, can either civil or penalties, can that there conclude the Administrator showing only upon a assessed based requirements or be a violation of has been that the terms the order to comply were recourse is to file an original action in (em- 7413(b)(2) § violated. 42 U.S.C. See federal district court to enforce its order powering the Administrator to commence that a violation has occurred. civil action for against an al- leged violator person “whenever APPENDIX

violated, of, or is in violation ... require- Federal 7IIS. ment enforcement prohibition or any ... order ... ... issued chapter”); (a) general 7413(c)(1) (subjecting any person con- Order to with SIP victed “knowingly violating ... or- any (a) der under subsection of [§ 7413]” Whenever, on the basis of informa- criminal fines imprisonment). This and/or tion available to Administrator, scheme must deemed violative of the Administrator finds that any person has process protections due of our Constitu- or is in violated require- tion. ment prohibition an applicable imple- Although the Administrator in this case plan mentation permit, the Administra- attempted to fill gap in the statute and tor notify person shall and the in State provide process TVA,1 some to it cannot be which plan applies of such finding. At deemed sufficient because constitutional any time after expiration of 30 days process due provided cannot be on an ad following the date on which such notice of hoc basis under the direction and control issued, violation is the Administrator of the entity whose being decision is chal- may, regard without period to the of viola- lenged.2 appropriate action, course of (subject tion 28)— to section 2462 of title as noted Judge Tjoflat, would have (A) issue an order requiring per- such been for the EPA to file an in action son comply to requirements with the or federal district court to U.S.C. prohibitions of plan such permit, or 7413(b) as it does in involving pri- eases (B) issue an administrative penalty companies. vate energy I recognize that (d) order accordance with subsection the EPA believed it could not have section, of this or pursued this course of against an- (C) bring a civil action in accordance government other agency for the multitude (b) with subsection of this section. presented reasons rejected in our opinion earlier However, in this case. (2) State per- SIP or failure enforce we have now laid all these concerns program mit rest, the EPA should treat TVA as it does any private energy company Whenever, for enforce- on the basis of information Thus, ment purposes. present the EPA’s Administrator, available to the the Admin- 1. conferring After amending with TVA process violation, To avoid this due we con- compliance times, initial order several clude that no or other adverse con- procedure crafted reconsideration dur- sequences directly could flow from adminis- (1) ing parties engaged pre- Thus, compliance trative orders. we can hearing discovery over two months and jurisdiction have no over the order before us (ALJ) judge law presided administrative over 7607(b)(1) under 42 U.S.C. it because lacks a multi-day evidentiary hearing where each legal consequences required under FTC v. party presented and cross-examined wit- 232, 239-43, Oil Calif., Standard 449 U.S. nesses. The ALJ then prepared and transmit- (1980), 101 S.Ct. 66 L.Ed.2d 416 ted the entire record to the EAB for its con- make a final agency action. sideration. to, prohibition or a requirement limited applica- not of an violations finds that

istrator order, waiver, permit rule, plan, or approved or an plan implementation ble issued, approved under or promulgated, subchapter V under program permit subchapters, for the or or provisions those widespread that such chapter are so this to the United fee owed payment failure of from a appear to result violations (other than sub- chapter this States permit or plan in which the State the Administra- chapter), this chapter II of or plan to enforce applies program may— tor Adminis- effectively, the permit program (A) administrative penalty In the issue notify the State. so trator shall (d) with subsection in accordance the notice shall program, permit of a case section, subchapter V this with in accordance be made finds (B) per- If the Administrator chapter. requiring such an order issue day beyond the 30th extends requirement such failure such with son (90 in the case of days notice after such prohibition, the Administrator permit program), such (C) a civil action accordance bring finding. notice give public shall (b) section or of this with subsection with such period beginning During the title, or of this section 7605 ending when such State public notice (D) Attorney General to request en- that it will the Administrator satisfies action in accor- a criminal commence (hereaf- program plan permit force such (c) of this section. dance subsection “period of in this section as ter referred enforcement”), Ad- federally assumed (U) orders Requirements for any requirement may enforce ministrator An under this subsection order issued pro- plan permit or prohibition of such or (other relating to a violation an order than person by— respect any to gram with title) shall not take 7412 of this of section (A) requiring such issuing an order person to whom it issued effect until the requirement comply with such person to confer with the opportunity had has prohibition, or concerning alleged vio- Administrator (B) penalty an administrative issuing under copy any order issued lation. A (d) in accordance with order subsection to the State shall be sent this subsection section, or of this in State pollution any air control

(C) a civil accor- bringing Any is- occurs. order violation (b) of section. with subsection this dance shall with this subsection state sued under nature of the specificity the reasonable (8) require- other enforcement of compliance specify a time for violation and ments rea- Administrator determines is which the sonable, into account serious- prohibition taking or Except requirement for a any good faith provisions violation under the ness preceding enforceable subsection, whenever, applicable require- comply the basis with efforts of this an order any case in which to the Admin- ments. available any information (or notice a viola- istrator, any under subsection Administrator this finds (1)) of, violated, is issued to paragraph is in tor person has or violation under (or no- copy of such order prohibition corporation, or requirement any other tice) title, appropriate corpo- issued to this shall be subchapter, this section V, An issued under this IV-A, rate subchapter or sub- officers. subchapter person require shall subsection chapter, including, but chapter VI of person, whom it was issued to with the commence a civil per- action for a requirement practica- as manent or expeditiously temporary injunction, or to as- ble, longer year but in no event than one sess and recover a civil penalty of not issued, after the date the order was $25,000 more than per day for viola- each shall be nonrenewable. No order issued tion, both, or in any of the following in- prevent this subsection shall stances: State or the Administrator from assessing person Whenever such has violat- any penalties nor otherwise affect or limit ed, of, or inis violation any requirement authority State’s or the United States prohibition or of an applicable imple- provisions enforce under other of this plan permit. mentation or Such an ac- chapter, any person’s obligations nor affect (A) tion shall be commenced during any any to comply chapter with section of this period federally assumed enforce- or with a permit term or condition of any (B) ment, or more days than 30 follow- applicable implementation plan promul- or ing the date of the Administrator’s noti- gated approved or chapter. under this (a)(1) fication under subsection of this section that person violated, such or (5) Failure to comply with new source of, inis violation such requirement or requirements prohibition. Whenever, on the any basis of available (2) Whenever person has vio- information, the Administrator finds that a lated, of, or any other is not acting compliance State any requirement prohibition or of this sub- requirement prohibition or chapter chapter, title, section 7603 of this sub- relating to the construction of new sources IV-A, chapter V, subchapter or sub- or sources, the modification of existing chapter chapter, VI of this including, may— Administrator to, but not limited requirement or (A) issue an order prohibiting the prohibition rule, order, waiver construction or modification of ma- permit issued, promulgated, ap- jor stationary source in any area to proved chapter, under this or for the which such requirement applies;1 payment any fee owed the United (B) issue an administrative penalty (other States under chapter this than (d) in order accordance with subsection subchapter II chapter). of this section, of this or (3) person attempts Whenever such to (C) bring a civil action under subsec- construct modify major or stationary (b) tion of this section. in any respect source area with to which in Nothing this subsection shall preclude (a)(5) a finding under subsection of this the United States commencing a from section has been made. (c) criminal action under subsection of this Any action under may this subsection be any section at any time for such violation. brought the district court of the United (b) Civil enforcement States for the district which the viola- shall, alleged occurred, tion is to have or Administrator is oc- appropriate, any person curring, resides, the case of or in which the defendant owner operator source, or or principal place of an where the defendant’s major affected emitting facility, major located, or stationary business is and such court shall source, and inmay, any jurisdiction violation, case other have to restrain such original. 1. So in probably semicolon should be a comma. civil to assess such compliance, require owed the Unit- any fees collect

penalty, to waiver, order, promul- rule, permit or any (other than chapter this under ed States sections under such or approved or gated any chapter) and this II of subchapter any require- including subchapters, nonpay- noneomplianee assessment any fee owed the payment ment for the 7420 of under section penalty ment owed (other chapter under States this United appropri- title, any other and to award this shall, chapter) II of this subchapter than of the commencement ate relief. Notice conviction, by a fine punished be upon appropri- to the given shall be such action by imprisonment or to title 18 pursuant agency. control pollution air ate State If a convic- years, or both. not to exceed by the brought action any the case paragraph is this any person tion of under subsection, this under Administrator after a first con- for a violation committed (includ- litigation costs of may award court para- under this person such viction of expert witness attorney and ing reasonable punishment shall the maximum be graph, fees) against whom party parties or to the the fine and respect both doubled if the court finds brought was such imprisonment. unreasonable. action was that such knowingly— Any person who (c) (A) Criminal material state- any false makes in, ment, or certification representation, knowingly violates (1)Any person who from, or or omits material information appli- prohibition or any requirement conceals, alters, or fails to file knowingly pe- plan implementation (during cable notice, application, rec- or maintain or federally assumed enforcement riod of ord, re- report, plan, or other document having been noti- days after more than chapter to pursuant to this be quired (a)(1) of this section fied under subsection (whether with filed or maintained either person that such by the Administrator imposed by requirements to the respect prohibition), or violating requirement State); by a Administrator or (a) of this sec- subsection any order under (B) notify report or as re- fails to tion, prohibition section requirement or chapter; this quired under 7411(e) (relating to new source of this title with, (C) falsifies, tampers renders in- standards), 7412 of section performance accurate, any monitor- or fails to install title, (relating 7414 of this title section required to ing device or method be etc.), of this inspections, section 7429 chap- under this maintained followed combustion), (relating solid waste title ter2 7475(a) (relating to of this title section conviction, shall, punished by a requirements), preconstruction by imprison- to title 18 or fine (relating this title section 7477 of years, or both. not more than ment for preconstruction requirements), an person under this any If a conviction (relating of this title under section 7603 for a committed af- paragraph is 7661a(a) orders), section or emergency person conviction of such under ter a first 7661b(c) permits), (relating this title punishment paragraph, the maximum this prohibition or of sub- any requirement or respect with to both the doubled shall be chapter (relating to chapter IV-A of this imprisonment. fine and control), subchapter or VI deposition acid knowingly fails to Any person who chapter (relating stratospheric this States .control), pay any fee owed under including requirement a United ozone by Probably a comma. original. should followed 2. So in be III, IV-A, V, subchapter, subchapter this tion committed a after first conviction of shall, conviction, chapter upon or VI of this person such under paragraph, this punished by pursuant be a fine to title 18 punishment maximum shall be doubled by imprisonment for not more than 1 respect to both the fine imprison- year, or both. If a conviction of any per- any pollutant ment. For air for which the paragraph son under this is for a violation Administrator has set an emissions stan- a committed after first conviction of such dard or for source for which permit a person paragraph, under this the maxi- has been issued subchapter V of this punishment mum shall be doubled with chapter, a release pollutant of such in ac- respect imprisonment. to both the fine and cordance with that permit standard or' shall not constitute a para- violation of this (4) Any person negligently who releases (4). graph paragraph into the air any ambient hazardous air pollutant pursuant listed to section 7412 of (B) In determining whether a defendant this title or extremely hazardous sub- who is an individual knew that the viola- pursuant stance listed section placed person tion another in imminent 11002(a)(2) of this title is not listed in danger of bodily death or serious injury— title, section 7412 of this and who at the (i) the defendant responsible only negligently places time person another for actual awareness or actual pos- belief danger imminent of death or bodily serious sessed; and shall, conviction, injury upon punished be (ii) knowledge possessed by person a by by imprisonment a fine under title 18 or defendant, other than the by but not for not 1 year, more than or both. If a defendant, may not be attributed to the any person conviction of para- under this defendant; graph is for violation committed after a except in proving pos- defendant’s person first conviction of such under this session of actual knowledge, circumstantial paragraph, punishment the maximum shall used, may evidence be including evidence respect be doubled with to both the fine that the defendant took steps affirmative imprisonment. to be shielded from relevant information. (5)(A) Any person knowingly who re- (C) It is an affirmative defense to a leases into air any the ambient hazardous prosecution charged that the conduct was pollutant air pursuant listed to section freely by person consented to endan- any extremely of this title or hazard- gered danger and that and conduct ous substance listed to section charged reasonably were foreseeable haz- 11002(a)(2)of title that is not listed in ards of— title, section 7412 of this and who knows at (i) business, occupation, pro- or a thereby places the time that he another fession; or person in danger imminent of death or (ii) medical treatment or medical or shall, bodily injury conviction, serious experimentation scientific conducted punished by fine under title 18 or professionally approved methods and imprisonment of years, not more than 15 person other had been made aware person or both. Any committing such vio- prior of the risks involved giving to con- shall, lation which organization is an sent. paragraph, conviction under this be sub-

ject $1,000,000 to a fine may of not more than The defendant establish an affirma- for each any violation. If a conviction subparagraph by of tive defense under this a person paragraph preponderance under this is for a viola- of the evidence. following the date thirty days defenses, more than de-

(D) affirmative All general under notification may the Administrator’s of prosecution fenses, and bars (a)(1) of a find- of this section crimi- other Federal subsection respect to apply violated or subpara- person has apply ing under that such may nal offenses prohibi- or (A) requirement and shall be paragraph violating such of this graph tion); of the United the courts or by determined principles of com- according to the (B) any States violating or is has violated in the may interpreted be they mon law prohibition or of this requirement other Concepts experience. and reason light III, IV-A, V, of subchapter subchapter or applicable under and excuse justification of including, but not chapter, or VI of this developed light in the may be this section to, prohibition or requirement a limited experience. of reason order, waiver, rule, permit, or any of issued, approved or plan promulgated, (E) a means “organization” term payment for the chapter, this or under es- government, a entity, other than under States any fee owed the United of any purpose, for organized or tablished (other subchapter II of than chapter this corporation, a com- term includes and such chapter); or this association, firm, partnership, joint pany, institution, foundation, (C) modify company, attempts construct or stock union, any other associa- trust, society, any or area with major stationary source persons. finding under subsec- respect tion to which a (a)(5) has been made. of this section tion (F) bodily injury” term “serious authority under a sub- this bodily injury which involves The Administrator’s means death, unconsciousness, ex- be limited to matters paragraph shall stantial risk protracted and obvi- physical pain, penalty sought does not treme where the total or protracted $200,000 loss disfigurement alleged or the first date ous exceed bodily of the function of impairment no more than 12 violation occurred member, faculty. organ, or mental of the admin- prior to the initiation months action, except the Adminis- where istrative subsection, (6) purpose this For the jointly Attorney General trator and includes, in addition to “person” the term involving larger that matter determine 7602(e) to in section the entities referred viola- longer period penalty amount title, responsible corporate offi- of this pen- administrative appropriate tion is for cer. by alty Any such determination action. (d) civil assessment Attorney Administrative General Administrator and subject judicial review. shall not be (2)(A) penalty as- An administrative may issue an ad- The Administrator (1) shall be as- any person as- against paragraph order sessed ministrative up order penalty a civil administrative sessed Administrator sessing violation, whenever, hearing $25,000, opportunity for a on per day made after information, sections 554 the basis of available the record in accordance with person— shall the Administrator finds of title 5. The Administrator such and 556 discovery issue reasonable rules (A)has violating any or is violated hearings under procedures other prohibition applica- of an requirement or order, (such issuing Before paragraph. plan implementation ble (i) give written the Administrator shall notice period of during any shall be issued (ii) enforcement, assessed an adminis- person to the federally assumed trative penalty pro- Administrator’s violation alleged is occurred, to have in posal to issue such order and provide such person resides, which such or where such person opportunity an request to such a person’s place principal is business lo- order, hearing on within days cated, by in such filing court within 30 date the notice is by person. received days following the date the administrative penalty order becomes final para- under (B) The may Administrator compro- (2), graph the assessment becomes final mise, remit, modify, or with or without (3), under paragraph or a final decision conditions, any penalty administrative following (3) a hearing under paragraph may imposed be under this subsec- rendered, and by simultaneously sending a tion. copy of filing by certified mail to the (3) The Administrator implement, may Administrator and the Attorney General. after consultation with the Attorney Gen- days thereafter, Within 30 the Administra- States, eral and the a pro- field citation tor shall in file such court a certified copy, gram through regulations establishing ap- index, or certified as appropriate, of the propriate minor violations for which field record on which the administrative penalty assessing citations penalties civil not to order or assessment was issued. Such $5,000 per exceed day of may court shall not set aside or remand such issued employees officers or designated order or assessment unless there is not by the Administrator. person Any substantial in record, evidence taken whom a field citation is may, assessed whole, as a support the finding of a within a reasonable time as prescribed by violation or unless the penalty order or the Administrator through regulation, assessment constitutes an abuse discre- pay elect to penalty assessment or to tion. Such or penalty assessment request a hearing on the citation. If field shall subject not be to review any court request for hearing is not made within except provided in paragraph. this specified the time regulation, any such proceedings, the United States penalty assessment in the field citation may seek to recover civil ordered shall be final. hearing Such shall not be or assessed under this section. subject section or 556 of title but (5)If any person fails to pay assess- provide shall a reasonable opportunity to ment of a civil penalty or fails be heard present and to evidence. Pay- with an penalty administrative order— ment of a civil penalty required by a field (A) after citation the order shall not be a assessment has defense to further final, become enforcement by the United States or a State violation, (B) correct or to assess after a court in an action brought the statutory maximum penalty pursuant (4) paragraph has entered a final to other chapter, authorities if the judgment in Administrator, favor of the violation continues. request Administrator shall the Attor-

(4) Any person ney against General to bring a civil whom civil penalty (3) appropriate paragraph assessed under district court to enforce the this subsection or to whom order or to an administra- recover amount ordered or penalty tive order is para- (plus issued under assessed interest at rates established graph 6621(a)(2) may subsection seek re- to section of title 26 view of such assessment in the United from the date of the final order or decision States District Court for the District of or the date of the final judgment, as the Columbia be). or for the district in which the may action, case In such an of amount, appropriateness and

validity, not be sub- shall order or assessment such 7420 of under section may be made ment fails to person who Any review. ject to or title, the Administrator where this penalty or- a civil timely basis pay on has notified pollution control air this section shall under or assessed dered violation, plaintiff and the the source of to such pay, in addition required be con- showing that the prima makes a facie interest, States the United penalty rise to giving events duct or including but expenses, enforcement continued or recurred likely to have are in- and costs attorneys fees limited notice, days of viola- of past the date for collection by the United States curred date include the presumed to tion shall be nonpayment quarterly and a proceedings day every each and notice and of such during which such quarter for each penalty until the violator establishes thereafter nonpayment Such pay persists. failure been compliance has continuous aggre- of the percent be 10 penalty shall achieved, except to the extent outstanding person’s amount of such gate preponderance prove by can violator ac- penalties nonpayment penalties and intervening that there were the evidence quarter. of such beginning as of crued or occurred which no violation days during (e) criteria Penalty assessment continuing was not the violation nature.

(1) any amount of determining under this section assessed penalty to be Awards (f> 7604(a) title, the Adminis- or this section award, pay an may The Administrator court, shall appropriate, as trator or $10,000, any person who not to exceed (in addition to into consideration take which or services furnishes information justice may require) as factors other judicial or or a to a criminal conviction lead business, impact economic size of any penalty for viola- business, the viola- administrative civil penalty on of the III, subchapter subchapter or good faith of this history tion compliance full tor’s IV-A, V, chapter enforced of this of the viola- or VI comply, the duration efforts to payment is sub- by any credible evi- section. Such under this tion as established than the for such appropriations evidence other (including ject to available dence method), payment by appropria- provided annual applicable purposes test officer, previously employee assessed Any or tion Acts. violator violation, the economic bene- govern- or local for the same or State United States the seriousness noncompliance, fit or who furnishes information renders ment not assess The court shall of the violation. performance in the official service with adminis- noncompliance penalties for this payment under duty ineligible 7607(a) of under section subpoenas trative may, by Administrator subsection. The title, 7414 of actions under section this or prescribe additional criteria regulation, title, had sufficient the violator this where an award. for such eligibility fail refuse to to violate or or cause Settlements; participation public (g) subpoena or with such action. before a consent days At least 30 assessed for each penalty may A under kind agreement or settlement purposes For deter- day of violation. the United States chapter to which this days of violation for the number of mining (other enforcement actions party than penalty may be assessed section, 7420 of this section (b) (d)(1) section, under this or of this subsection chapter, title, II of this 7604(a) title, subchapter or an assess- section involving whether or not civil or criminal out his normal activities acting and who is penalties, subject judgments Depart- or employer. orders from the policy public partic- ment of Justice § 7U77. Enforcement court, ipation) final or filed with a shall, The Administrator and a State provide Administrator shall a reasonable may, measures, take such including issu- opportunity by notice in the Reg- Federal order, ance of an seeking injunctive or persons ister to who are not named as relief, as necessary prevent the con- parties or intervenors to the action or mat- struction or major modification of a emit- writing. ter to comment in The Adminis- ting facility which does not conform General, to the Attorney appro- trator or the requirements priate, promptly part, pro- shall of this or which consider such written and may posed comments withdraw or be constructed in area desig- his proposed withhold consent to the 7407(d) nated to section of this or if agreement the comments disclose title as attainment or unclassifiable and facts or considerations which indicate that subject which is not implementation to an inappropriate, improper, consent is plan which requirements meets the of this inadequate, or inconsistent with the re- part. quirements chapter. Nothing of this apply this subsection shall to civil crimi- chapter.

nal under this

(h) Operator purposes provisions

For of this title, section and section 7420 of this America, UNITED STATES “operator”, provi- term as used in such Plaintiff-Appellee, sions, any person shall include who is sen- v. management personnel ior corporate or a Except officer. in the knowing case of and Hugh McPHEE, Rodcliffe violations, willful such term shall not in- Defendant-Appellant. any person stationary clude who is a engi- No. 02-12797. neer or responsible technician for op- eration, maintenance, repair, monitoring Appeals, United States Court of equipment and facilities and who often Eleventh Circuit. has supervisory training duties but July who is not senior management personnel corporate or a Except officer. in the case violations, knowing willful pur- (c)(4) section,

poses of subsection of this person”

the term “a shall not include an

employee carrying who is out his normal part

activities and who is not a of senior

management personnel corporate or a offi- Except

cer. in the case of knowing and violations, purposes

willful para- (1), (2), (3), (c)

graphs of subsection

of this section person” the term “a shall

not include an employee who is carrying

Case Details

Case Name: Tennessee Valley Authority v. Whitman

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jun 24, 2003

Citation: 336 F.3d 1236

Docket Number: 00-15936, 00-16234, 00-16235 and 00-16236

Court Abbreviation: 11th Cir.