Haynes and Boone, LLP
  August 18, 2003 - Dallas, Texas

ALERT - Clean Air Act Administrative Compliance Orders Found Unconstitutional
  by Tim Powers

Under Section 113 of the Clean Air Act, when it finds that a regulated party is engaged in unlawful activity, EPA may, among other things, issue an administrative compliance order (ACO) that directs that party to comply, provided: (a) the ACO is based upon any information available to the Administrator; (b) the ACO is issued thirty days after the issuance of a Notice of Violation; and (c) the regulated party is given an “opportunity to confer” with the Administrator. In a June 24, 2003 decision, the 11th Circuit, in Tennessee Valley Authority v. Whitman, No. 00-15936, held that the statutory scheme is unconstitutional to the extent that severe civil and criminal penalties can be imposed for noncompliance with the terms of an ACO. The court found it did not have jurisdiction to review a request to set aside an Environmental Appeals Board Order based on an ACO issued to the TVA because the ACO was not a final agency action. The court explained that EPA must prove the existence of a Clean Air Act violation in district court, and until then, a regulated party is free to ignore the ACO without risking imposition of penalties for noncompliance with its terms.


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