Clean Air Act and Clean Water Act: Enforcement Mechanisms. Jennifer Simon Lento. Associate Nixon Peabody, LLP

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1 Clean Air Act and Clean Water Act: Enforcement Mechanisms Jennifer Simon Lento Associate Nixon Peabody, LLP

2 EBC Young Environmental Professionals: EPA Air & Water Regulations, Two Perspectives March 20, 2012 Jennifer Simon Lento Nixon Peabody LLP Clean Air Act and Clean Water Act: Enforcement Mechanisms

3 Clean Water Act: Enforceable Requirements Section 301 (33 U.S.C. 1311): Effluent Limitations Section 307 (33 U.S.C. 1317): Toxic and Pretreatment Effluent Standards Section 308 (33 U.S.C. 1318): Records and reports; Inspections Section 311 (33 U.S.C. 1321): Oil and Hazardous Substances Section 402 (33 U.S.C. 1342): NPDES Program Section 404 (33 U.S.C. 1344): Dredged & Fill Permits Section 405 (33 U.S.C. 1345): Sewage sludge disposal or use 3

4 Clean Air Act: Enforceable Requirements Stationary Sources: New Source Review/ Prevention of Significant Deterioration MACT Air Toxics Enforcement State Implementation Programs/ State and Local Coordination Title V: Operating Permits New Source Performance Standards 4

5 Clean Air Act: Enforceable Requirements (continued) Mobile Sources: Civil Enforcement of Renewable Fuels Standard Program Fuels Enforcement Program Motor Vehicle (on-highway) Defeat Device/ Misbuild/ Defect Reporting/ On-board Diagnosis Non-road (off-road) enforcement Program Enforcement of MARPOL Annex VI Memorandum of Understanding Urban Bus Retrofit Enforcement 5

6 Civil Enforcement Mechanisms: CWA Clean Water Act: Section 309 (33 U.S.C. 1319): Enforcement Authorizes issuance of Notices of Violation, Compliance orders Authorizes Judicial Enforcement in the event administrative orders do not result in compliance Section 504 (33 U.S.C. 1364): Emergency Powers Authorizes Judicial Enforcement Actions (i.e., law suits) Penalties: Under Section 309 of the CWA, penalties for violating the permit or not having a permit to discharge into the waters of the U.S. may be up to $37,500 per violation per day. Under Section 311, a Class I penalty may be assessed in an amount of up to $16,000 per violation, not to exceed $37,500; a Class II penalty may be assessed in an amount of up to $16,000 per day per violation, but not to exceed $177,500. 6

7 Civil Enforcement Mechanisms: CAA Clean Air Act: Section 303 (42 U.S.C. 7603): Emergency Powers Authorizes EPA to issue Administrative Enforcement Orders Authorizes Judicial Enforcement Actions (i.e., law suits) Penalties: Up to $37,500.00/day per violation. 7

8 Criminal Enforcement Mechanisms: CWA Section 309 (33 U.S.C. 309(c)): Negligent Violations: Monetary fine and/or up to 1 year imprisonment Knowing Violations: Monetary fine and/or up to 3 years imprisonment for first conviction; double fine and/or up to 6 years imprisonment for subsequent convictions Knowing Endangerment: Individual fine and/or imprisonment of up to 15 years for first conviction doubled for subsequent convictions. Organization can be fined up to $1 Million/ violation. 8

9 Criminal Enforcement Mechanisms: CAA Section 113 (42 U.S.C. 7413(c)): Knowing Violations of SIPs, NSPSs, Permits, et al.: Fine pursuant to Title 18 and/or Imprisonment up to 5 years for first conviction. Double for subsequent convictions. False statements re of SIPs, NSPSs, Permits, et al : Fine pursuant to Title 18 and/or Imprisonment up to 2 years for first conviction. Double for subsequent convictions. Knowingly fails to pay fee: Fine plus up to 1 yr Imprisonment Negligent Release/ Bodily Endangerment: Fine and/or 1 year Imprisonment. Knowing Release/Bodily Endangerment Individual: Title 18 Fine and/or up to 15 years imprisonment Organization: $1 Million/ violation 9

10 Citizen Suits: Public Enforcement Mechanisms Clean Water Act: Section 505 (33 U.S.C. 1365) [A]ny citizen may commence a civil action on his own behalf (1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or (2) Against any Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter 10

11 Citizen Suits: Public Enforcement Mechanisms Clean Air Act: Section 304 (42 U.S.C. 7604): [A]ny person may commence a civil action on his own behalf (1) against any person (i) including the United States, and (ii) any other governmental instrumentality or agency who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, (2) Against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter (3) Against any person who proposes to construct or constructs any new or modified major emitting facility without a permit.or who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of any condition of such permit. 11

Citizen Suits: Threshold Requirements Notice: No suit may be filed until 60 days after notice of the intended suit/ violation is provided to the Administrator.

12 Citizen Suits: Threshold Requirements Notice: No suit may be filed until 60 days after notice of the intended suit/ violation is provided to the Administrator. Suit is not permitted if state or Administrator has commenced and is diligently prosecuting a criminal or civil action Continuing Violation Requirement: See,Gwaltney of Smithfield v. Chesapeake Bay Foundation, 484 U.S. 49 (1987) Violations must not be wholly past Reasonable likelihood of future recurrence; 12

13 Jennifer Simon Lento

14 Young Environmental Professionals Committee: EPA Air & Water Regulations, Two Perspectives

Environmental Citizen Suits: Strategies and Defenses

Environmental Citizen Suits: Strategies and Defenses Tom Lindley August 2008 Topics Federal laws create options for citizen suits CWA, CAA, RCRA, TSCA, ESA, etc. Initial investigation and evaluations Corrective