ELR Citation: ELR 20073
No(s). R-85-09 (D. Md. Sep 1, 1987)

The court rules that civil penalties under §113(b) of the Clean Air Act (CAA) are available for violations occurring prior to the issuance of a notice of violation (NOV), and that the CAA places the burden of proving each day of a continuing violation on the government rather than requiring the alleged violator to demonstrate compliance. The Environmental Protection Agency (EPA) sought civil penalties and injunctive relief against a titanium dioxide manufacturer for alleged long-term violations of the CAA. The court first rules that although under CAA §113(b) civil penalties can only be assessed against persons who have committed violations beyond 30 days after receipt of an NOV, the penalties may include amounts for violations occurring during the pre-NOV period. The availability of pre-NOV penalties furthers the CAA's goal of protecting and enhancing the quality of the nation's air resources by providing polluters with an incentive to avoid and resolve emission violations. Broadening the penalty period to include days before the issuance of the NOV enhances the court's ability to fashion an appropriate penalty, and other federal courts have assessed penalties for pre-NOV violations. The court holds, however, that the statute of limitations in 28 U.S.C. § 2462 bars EPA from obtaining penalties for violations that occurred more than five years prior to the filing of this action.

The court rules that unlike the Federal Water Pollution Control Act, the CAA places the burden of proving each day of a continuing violation on EPA, rather than shifting the burden of proof to the violator after EPA has demonstrated that violations at various intervals occurred. The court also rules that EPA cannot satisfy its burden of proving each day of a continuing violation by presenting only intermittent testing results. Although EPA is not by itself able to establish such detailed proof for long-term violations, CAA §114(a) provides that EPA may require a source to sample its emissions at prescribed intervals for the purpose of detecting violations. The court suggests that if EPA could produce test results obtained at logical and uniform intervals, shifting the burden of proof to the violator might be appropriate.

In assessing the amount of the penalties, the court first establishes the maximum penalty for the proven days of violation, and then adjusts the amount by reference to the size of the business, the economic effect of the penalty, the seriousness of the violation, the technological or economic infeasibility of compliance, the violator's good or bad faith, the violator's relationship with the state, and any governmental delay in bringing the action. The court declines to issue an injunction concerning future emissions by defendant because it is not established that defendant is presently in violation, and the mere possibility of future violations is insufficient to warrant an injunction. Moreover, defendant is presently operating under a permit that contains enforceable emission limitations. Finally, the court declines to order an environmental survey because there is insufficient evidence of significant health effects from defendant's emissions.

Counsel for Plaintiff
Fred R. Disheroon
Special Litigation Unit
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-7361

Counsel for Respondent
Joseph S. Kaufman
Melnicove, Kaufman, Weiner, Smouse & Garbis
36 S. Charles St., Baltimore MD 21201-3060
(301) 332-8500