Law and the Environment : Environmental Lawyer & Attorney : Foley Hoag Law Firm : Boston, Washington D.C.

While some of my colleagues are laboring in the climate change vineyards (and we should have posts soon summarizing the House bill), I thought I would note another interesting enforcement decision issued this week.  United States v. Oliver is, in some respects, a run of the mill decision.  A mom-and-pop medical waste incinerator (the adjective is the court’s not mine; it does give one pause) failed for several years to comply with EPA regulations governing such facilities.  EPA sought and obtained a permanent injunction ceasing facility operations until the defendants can demonstrate to the satisfaction of EPA and the court that it can comply with the applicable regulations.

The interesting part of the decision relates to the Court’s imposition of a penalty.  EPA took the position that the Court should presume that the maximum penalty should be imposed, citing Pound v. Airosol and United States v. B & W Inv. Properties. Doing so in this case would have generated a penalty of $220,080,000 before any mitigation were considered. That EPA itself only sought a penalty of $445,000 demonstrates the absurdity of even starting with the maximum penalty. The court, noting that the defendant had two employees and was poorly capitalized, stated that the size of the business argued for a penalty “far smaller” than what the government sought.

The court also considered, as a separate factor, the impact of the penalty on business operations. While previously noting that the defendants showed no real likelihood of being able to come into compliance, the court nonetheless noted that imposition of a large penalty would pretty much make it impossible for the defendants to operate in compliance with applicable regulations, and therefore concluded “that the penalty should be dramatically lower than the amount sought by the United States.”  The court imposed a $75,000 penalty.

I’m not sure I’d read too much into this decision, but it does give defendants a basis for arguing that courts should not start with the maximum statutory amount in determining an appropriate penalty.  It also puts the defendant’s ability to pay front and center in the penalty calculus.

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In an interesting case, the Court of Appeals for the First Circuit this week vacated most of a preliminary injunction issued by a federal judge in Puerto Rico, because, the Court concluded, the lower court had wrongly, and without doing so explicitly, converted a PI hearing into a hearing on the merits.

In Sanchez v. Esso, a gasoline station operator brought RCRA citizen suit claims against Esso, which supplied gasoline to the station, and which actually was the owner of the USTs in which the gasoline was stored. Plaintiffs requested a PI requiring Esso both to assess and to remediate the contamination resulting from leaks in the tanks. After the District Court issued the PI, Esso sought interlocutory relief.  The Court of Appeals vacated most of the injunction.

As the Court of Appeals noted:

[w]hen a trial court ‘disposes of a case on the merits after a preliminary-injunction hearing … it is likely that one or more of the parties will not present their entire case….  Therefore, it is ordinarily improper to decide a case solely on such a basis. 

Reviewing the District Court proceedings, the Court of Appeals pointed to District Court’s statement that the Esso “appear[ed] to be in continuous violation” of the applicable regulations.  Moreover, following issuance of the injunction, Esso had asked the District Court to require the plaintiffs to post a bond.  The District Court denied the request on the ground that:

"'the grant of the preliminary injunction carried[d] no risk of monetary loss" for Esso in the face of the "documented" contamination resulting from Esso’s "violation of regulatory safeguards."

The District Court also made statements to the effect that the only issue going forward was the “extent” of Esso’s liability.

The Court of Appeals concluded that it was “inescapable” that the District Court pre-judged Esso’s ultimate liability.  Aside from the District Court’s conclusory statements about liability, the District Court also failed to address the traditional factors required for issuance of a PI.  This was “a clear error of law.”

It is unclear what impact this case will have. However, RCRA, like most environmental statutes, has an element of strict liability.  The strict liability nature of these statutes often makes it too easy for courts – and perhaps regulators at times? – simply to assume that a defendant is liable, without worrying about the sometimes messy process of discovery and the taking of evidence.  Sanchez v. Esso thus serves as a welcome reminder that even in a world of strict liability, a defendant remains entitled to his day in court.

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Last week, Judge Larry McKinney issued an order requiring to shut down three coal-fired generating units at its Wabash Station facility by no later than September 30, 2009. The decision actually struck me as a thoughtful analysis of injunctive relief issues in a situation where a violation of NSR regulations had already been proven. Although the decision has gotten most press for the order shutting down the units, it covers a number of issues important to injunctive relief situations, and there are some nuggets which are potentially useful to generators; it is not a one-sided decision. Here are some highlights:

The shut-down order – although significant, is not as earth-shattering as it seems. Cinergy gave the judge little choice by testifying that it would not be economic to install pollution controls on the units, given their age and size. The fight was thus about when, not whether, the units would be shut down. The judge was clearly annoyed that, following the liability finding, Cinergy had seemingly taken no action to plan for a shut-down. The judge, in response to reliability concerns, did allow the units to operate through the summer of 2009.

Irreparable harm discussion – a few noteworthy aspects here

The court relied on modeling which demonstrated that Wabash emissions contributed to PM_2.5 levels downwind

The court noted that contributions of “just a few tenths of a ug“ can be significant when an area is on the border between compliance and noncompliance.

Like the court in the TVA injunctive relief case we posted about earlier this year, the court specifically noted that adverse health affects can occur at levels below the NAAQS

The court rejected the plaintiffs’ argument that acid deposition and mercury emissions from Wabash had caused irreparable harm, concluding “that Plaintiffs did not provide sufficient nexus between the relevant excess emissions and the negative … effects. 

In a win for generators, the court rejected the plaintiffs’ position that BACT for NO_x emissions in 1989 was SCR technology. This is an important issue, because EPA and the states will sometimes try to take the position that unproven technologies are nonetheless BACT. The decision squarely rejects that argument.

Surrender of SO₂ allowances. The court required Cinergy to surrender SO₂ allowances equal to the excess emissions from the May 2008 jury verdict to the time the units are shut-down. However, it is important to note that the Plaintiffs had requested that the court order Cinergy to install BACT on larger units at the Station that had not violated NSR rules. The court rejected that argument, noting that the Plaintiffs’ proposal “does not bear an equitable relationship to the degree and kind of harm it is intended to remedy …. Imposition of such a remedy is punitive in nature.”

In sum, although the decision is important, it is not surprising in context. Indeed, the finding on BACT, which was favorable to Cinergy, may have the most precedential significance.

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On the better late than never front, I finally got around to reviewing the still relatively recent decision in United States v. Cinergy Corp. regarding the scope of injunctive relief available with respect to violations of the Clean Air Act’s New Source Review, or NSR, provisions. Although the decision was issued in mid-October, its significance is great enough to mention here.

As most readers here will know, the Cinergy case is one of the remaining NSR enforcement cases originally brought by the Clinton administration. The defendants had previously been found liable for NSR violations at the Wabash River power plant. The recent decision involved the defendants’ efforts to preclude the government from seeking retroactive injunctive relief, i.e., not penalties, and not prospective relief to prevent future violations, but injunctive relief intended to remedy, mitigate, or offset the prior violations.

The relevant statutory language, from § 113 of the CAA, provides that a court may “restrain” violations, impose penalties, and, critically, “award any other appropriate relief.” The court in Cinergy held that this broad language authorizes injunctive relief focused on past harm, rather than just restraint of future violations.

It is one thing to order restoration of an illegally filled wetland. In that context, such a remedy is understandable and its scope necessarily somewhat limited. In the case of air pollution, however, once the emissions have occurred, it is obviously impossible to identify the location of that pollution or the scope of the remedy appropriate for such past harm. In other words, demonstrating an appropriate nexus between the harm and the remedy will often be difficult, if not impossible. 

One obvious possible form of relief would be to calculate the excess emissions resulting from the non-compliance and require the defendant to overcontrol in the future until it has offset those excess emissions. Whether the court will order such an offset or any other form of remedial injunction is not yet known, because the court concluded that it needed to have an evidentiary hearing regarding what relief it should in fact order. However, the mere possibility that such relief may be available certainly provides the government with a significant hammer to use during settlement negotiations in pending or future NSR enforcement cases. 

One issue of concern is whether such relief might be ordered against a current owner of a facility even if the original NSR violation was caused by a prior owner. In that case, the prior owner is not capable of offsetting the historical excess emissions, but the current owner would have a strong equitable argument that a remedial injunction should not be imposed against it.

As always, some of these questions are obviously going to have to wait for future judicial decisions.

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