Jennifer Simon Lento Clean Air Act and Clean Water Act: Enforcement ...
Clean Air Act and Clean Water Act: Enforcement Mechanisms Jennifer Simon Lento Associate Nixon Peabody, LLP
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
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
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
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
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
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
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
8
can be fined up to $1 Million/ violation.
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:
9
$1 Million/ violation
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 …
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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. • 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
12
likelihood of future recurrence;
Jennifer Simon Lento [email protected] 617-345-1352
www.offshoreenergy.blogspot.com
Young Environmental Professionals Committee:
EPA Air & Water Regulations, Two Perspectives
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
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
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
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
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
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
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
8
can be fined up to $1 Million/ violation.
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:
9
$1 Million/ violation
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
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. • 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
12
likelihood of future recurrence;
Jennifer Simon Lento [email protected] 617-345-1352
www.offshoreenergy.blogspot.com
Young Environmental Professionals Committee:
EPA Air & Water Regulations, Two Perspectives
