. , ..



### UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460**MEMOR.A.~DUM** 

### SUBJECT: 

### FROM: TO:**Addresse<~s** 

## APR 1 1999 OFFICE OF

· ENFORCEMENT AND COMPLIANCE ASSURANCJE



### Section 303 of the Clean Air Act"

Attached is a guidance document developed by the Office of Regulatory Enforcement and the Air Enforcement Division that supersedes EPA's September 15, 1983, guidance**entith~d** 

### "Initiation of Administrative and Civil Action under Section 303 of the Clean Air Act During Air Pollution Emergencies." 

### Section 303 of the Clean Air Act provides the Agency with an effective authority to abate condit i ons that present an imminent and substantial endangerment to public health, welfare, or the environment. The new guidance provides examples of such conditions and explains the scientif i c and legal prerequisites for taking action in accordance with the statute. Advancements in the health and environmental sciences continue to influence our understanding of the threats posed by air pollution. We must stay abreast of these advancements and 

### be ready to exercise §303 when necessary. Yet we must also be mindful of the potemjally significant economic and other effects of a §303 action and ensure that the relief requested is commensurate with the endangerment presented. This is a challenging area for enforcement and I greatly appreciate the many thoughtful comments and suggestions from the Regions, OGC and other headquarters offices, and the Department of Justice during the development of this guidance. On November 1 2, 1997, my office distributed a

_ compendiurn of inupinent and substantial endangerment guidance documents. Please insert the attached guidance at Tab 9. For further information and assistance, please contact Mr. Cary Secrest of the Air Enforcement Division at (202) 564-8661. Cary d · eserves our thanks for working so hard to guide this important document to a successful conclusion.

### -2- Addressees: Regio nal Counsels, Regions I-X Director , Region 

### I Oftir.:e ofEnvironmental Stewardship Director , Region**~I** Division ofEnforcement and Compliance Assurance Director, Region 

### III Air Protection Division Director, Region 

### IV Air , Pesticides, and Toxics Management Division Director, Region V Air and Radiation Divisi on Director, Region VI Compliance Assurance and Enforcement Division Director, Region 

### VII Air, RCRA, and Taxies Division Assistant Regional Administrator, Office ofEnfo rcement, Compliance

and Enviroruilental Ju s tice , Region 

### VITI Director , Region 

### IX Ai r Division Director, Region 

### X Off i ce of Air Qu

_ ality Director, Federal Fac ilit ies Enforcement Office Director, Offi ce of Air Q uality Planning and Standards
cc : Gregory Foote, Office of General Counsel Lois 

### Schiffer, Department of Justice

### GUIDANCE ON SECTION 303 OF THE CLEAN AIR ACT April1999 

### I. INTRODUCTION Section 303 of the Clean Air Act (Act), 42 U.S .C. § 7603/ authorizes the Administrat or of th e Environmental Protection Agency (EPA) to bring an action fo r injunctive r elief to abate imminent and substantial endangerrnents to public health , welfare, o r the environment caused by emiss ion s of air pollutant s. 2 Section 303 allows EPA to initiate jud icial act ion against, or issue an administrative order to, any per so n who is causing or contrib utin g to the pollution to stop the emissions of the p oll utants or to take other action as nece ssary. As di scuss ed in th i s guidance, §303 is a " gap-fill ing" authority , providing a basis for injunctive relief for a wide range of endangerment scenarios, regardless of a pollution source 's comp lian ce o r noncompliance with any provision of the Act
. It also provides for injunctive relief when an air pollutant(s) i s n ot otherwise regulated under the Act. On September 15, 1 983, EPA issued a guidance docume nt entitled 

### Initiation of Administrative and Civil Action under Section 303 of the Clean Air Act During Air Pollution Emergencies
. EPA is issuing this updated guidance in li g ht of the 1 990 Amendments to the Act which modified §303, and to account for m ore recent case law under si milar Federal

1 Section 303. as amend ed in 1 990 , and codified at 42 U.S.C. § 76 03, reads as follows: Notwithstanding any other provisions of this chapt er , th e Administrator, u pon r ece ipt of ev idence that a poll ution source or combinatio n of sources (including moving sources) is presenting an immin ent and substantial endangem1ent to public health or welfare , or the enviro nment , may bring suit on behalf of th e United States in the appropriate Un ited Stat es distri ct court to immediately restrain any person causing or contributing to the alleged pollution to stop th e em ission of air pollutants causing or contributing to s uch pollution or to take such other actio n as may be n ece ssary . If it i s not practicable to assure prompt protection of public hea lth or welfare or the enviro nment by commencement of such a civil action, the Administrator may issue such orde r s as may be necessary to protect public health or welfare or the env ironm ent. Prio r to taking a ny action under this section, the Administrato r shall consult with appropriate State and local authorities and attempt to confirm the accuracy of the information on which the action proposed to be taken is based
. Any o rder issued by the Admini s trator und er this section shall be effective upon iss u ance and s hall remain in effect for a period of not more than 60 days, unle ss the Administrator brings an action pursuant to the first sentence of this section befo re th e expiration of that period. Wh enever the Administrator brings an action within the 60-day period , s uch order shall r emain in effect for an additional 14 day s or for such longe r period as ma y be au thorized by the court i n which such action is brou g ht. 2 Section 302(g) , D efiniti ons, and codified at 42 U
. S.C. §7602(g) , reads as follows : The term "air pollutant " means any air pollution agent or combination of such agents, includ ing any ph ys ical , chemical, biological , rad ioactive (inc luding so urce material , special nucle a r material , and byproduct materi a l) s ubstance or matter which is e mitted into or otherwise en ters th e ambient air. Such term includes any precursors to the formation of any air pollutant , to the extent the Administrator has identified such prec urso r or pr ec urso rs for the particu lar purpo se for which th e term ' 'air pollutant " is used.2 

### environmental statutes which informs EPA' s authority to act under §303
. 3 

### This guidance superce des the 1983 guidance. It is intended to be used by EPA as internal g uidance only and does not est ablish any substantive or procedural rights
. EPA reserves the ri g ht to act at variance with this guidance and to c hange it without public notic e. The 1990 Amendments expanded the sco pe under which EPA may act pursuant to §303 from " imminent and substantial endangerment to th e health of persons " to " imminent and substantial endangerment to public health or welfare, or the envi ronment. " The Amendments also eliminated the requirem e nt for state or local inaction as a prerequisite to EPA initiating action under §303, and len gthened t he duration of administrative orders pursuant to §303 from 24 hour s to 60 days. In so doin g, Congr ess greatly increa sed the utility of §303
. However, as of t he date of this guidance, EPA has exercised it s new authority against a specific so ur ce o nl y three t imes 4 

### As discussed belo w, EPA does not believe that Congress restricted EPA's authority to act under §303 to situat ions where peop le are injured or other serious air poUution hazards are manifest. Rather , Congress also intended for EPA to use the authority to address risk s before they caused harm. This guidance will help EPA carry out its authority as intended under the Act. 5 

### In addition to initiating actions under §303, E PA ha s taken other emergency actions unde r statutes that have s imil ar provisions, such as 

### § 106 of t he Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) [ "w hen the Pre side nt determines that th ere may be an immin ent and sub stantial endangerment to the public health or welfare or the envi r o nment " ] and §7003 of the Resourc e Conservation an d Recov ery Act (RCRA) ["may

3 Other statutes include "emergency power " provision s giving appropriate govemment officials the right to seek judicial relief , or to take other action to avert imminent and substantial threats to the e nvironment or public health
. In the case of United States v. Reillv Tar & C hemical Com. , 546 F
. Supp. 1100 (D
. Mim1
. 1982) s uit was brought under RCRA Section 7003. Th e court cons id ered the inuninent haza rd provision s ofR CRA, Section 504 o fthe CWA , Sec tion 106 ofCERCLA, S ec tion 303 ofthe CAA , and the SDW A and noted that the phrase "immin ent a nd s ub s tantial endangerme nt " was inte nded to be treated similarly i n each sta tute . EPA believes it is appropriate to interpret ide ntical terms such as " imminent" and "e ndan gem1e nt " in a consistent mann er. 4 See In Re : Min e r ec Mining Chemical s , EPA D ocket No. R 9-94-34 (Clean Air Act Emergency Order, August 26 , 1994) , and In Re: Minerec Mining Chemicals, EPA Docket No
. R 9-9 4-34 ( First Amended Clean Air Act Emergency Order , Septemb er 28 , 1994) ; In Re: Shallow Water Refinerv , EPA D ocket No. VII- 97-CAA-.120 (Jun e 12 , 1 997); and In R e: Trinity Ame ri ca Comoration , EPA R egion IV , October 3, 19 97. Prior to 1990 , EPA used its §303 authority to address high parti cu la te matter in North Binningham , Alabama ( 197 1) , a nd to address an asbestos hazard at a min e in Glob e, Arizona (1983). 5 The Amendm e nt s a lso contain a provision sinlilar to §303 under § 1 1 2(r)(9) , whic h pertains to accidental releases of a regulated substance as defi ned by § 1 12(r)(3). The read er is enco u r aged to read EPA· s guidance concerning the use of this section, publi shed by EP A in an April 17
. I 99 1 document 

### entit led 

### Guidance on Using Order Authority under Section 112(r)(9) of 

### the Clean A ir A ct, as Amend ed

, and on Coo rdinated Use with Other Order and Enforcement Authorities, and in Fe d Reg
. Vol. 56 , No. 104 , p . 24394 , May 30 , 1 99 1.

### 3 present an imminent and substantial endangerment to health or the environment "]. This guidance is consistent w ith the case law and administrative practice under these other authorities, and the Amendm ents of 1 990. 6 It is also consistent w ith other published guidelines for taking action under EPA 's imminent and substantial endangerm e nt authority. 7 

### II. LEGAL PREREQUISITES TO INITIATING ACTION UNDER SECTION 303 The basic prerequisites to initiating actio n against a party under §303 are that the Administrator has received evidence that: 

### (1) a pollution source or comb ination of so urces (including moving sources) is presenting an imminent and substantial endangerment to public health or welfare, or the environment; and (2) the party to be restrained is causing or contributing to such all eged pollution. In addition, §303 requ ires the Administrator, prior to taking any action , to consult w ith appropriate State and local au th orit ies and attempt to confirm the accuracy of the information on which the action proposed to be taken is based
. The following discussion includes the definiti o ns of key terms , the legislative history and case law , and the resources available to assist EPA staff as they address these prerequi sites. 

### A Evidence Indi cates that a Pollution Source or Combination of Sources (Including Moving Sources) is Pre senting an Imminent and Substantial Endangerment to Public Health or Welfare. or the Environment 1
. The meaning of "imm inent and substantial endangerment"
a. "Endangerm e nt " EPA interprets "endangerment " under §303 to mean threatened or potential harm, as well as actual harm
. Therefore , EPA need not delay taking action under §303 until actual harm

6 Th e leg islative history of the 1990 Clean Air Act Amendments indicates that one reason for amending §303 was to make it similar to other en d ange rment authori ties. Th e Senate Report on the 19 90 Amendm ents sta tes in relevant part : Th ese changes are necessary to enabl e th e Administra tor to add ress air pollution emergenc ies in an adequate manner , and to confonn t he Administrator's emergency authority under the Act to eme rgency authorities under other e nvirorunental law s. See , TSCA section 208 , CERC L A section 106 , RCRA section 7003 , and CWA sec ti on 504. Similarly, the deletion of th e requir eme nt that the Administrator ma y not bri n g sui t u11less State o r local authorities have failed to act conforms the Act to other envirorunental laws
. [S
. Re p . No. 101-228 , IOlst Cong. , l st Sess
. 370 (1989)] As discuss ed herei n, key provi sio ns of these authorities are similar
. Th ere should be no practical differences in the 

### scope of 

### EPA's authority between these similarl y-wo rded statutes . 7 See 47 FR 20664 , May 13, 1992 ; 56 FR 24393, May 30, 1991 , and 59 FR 58970 -71 , November 15, 1994
.4
occurs . Such delay wou ld thwart Congress ' intent that EPA use §303 to protect the nation ' s air quality. As stated in the Hou se Report on the Clean Air Act Amendment s of 1977: In retaining the words " imminent and substantial endangerment.. .," the committee intends that the authority of this section not be u sed where the risk of harm is co mpletel y speculative in nature or where the harm threatened is insubstantial. However , ... the commi ttee inte nd s that this l anguage be constructed by the courts and the Administrator s o as to give paramount importance to the object ive of protection of the publi c health
. Administrative and judicial implementati o n of this authority mu st occur early enough to prevent the p ote ntial hazard from materializi ng (emphasis added). 8 The Senate Report on t he 1990 Amendments to §303, whic h expanded the application of §303 to publi c we lfare and th e e nvironment , expressly states that §303 applie s to " threatened " harm
. The R eport says : Th ese amendments to secti o n 303 ofthe Act, as well as parellel (sic) amendments to secti o n 113, have several purp oses . the (sic) amendments broaden the Administratror ' s (s ic) authority to issu e emergency orders to abate threats to welfare and the environment, in addition to the autho rity to respond to threats to "the health of person s." Broadening sectio n 30 1 (sic) to includ e harm to the env ironment is importan t to enable EPA to addre ss emergency threats to ecosystems in in st ances where there is no readily demonstrable immedi ate threat to human health
. For e xampl e , toxic em iss i o n s might be blowing dow nwind from a facility into an undeveloped natural area and threat e n i ng to impair that area ' s ecosystem . This amendm ent will allo w E PA to order the plant to take necessary steps to eliminate the threat to flora and fauna (empha s is added)
. 9 Court s have interpreted " endangerment " to in c lude threatened o r potential harm under §21 1 of the Act (p rov iding EPA th e auth o rity t o r egulate fuels) and other en viro nmental statutesw In Ethyl Co rp oration v. Environm e ntal Protection Agen cy , 11 the Court interpreted th e "endanger" standard under §211 as requirin g only a findin g that lead e missions presented a "sig nificant risk " o f injury to the public
. In Ethyl , the qu est ion was whether EPA was justified in

8 H.R
. R e p . No. 95

-294 , 95t h Cong
. , 1 s t Sess. 328 (1977)
. 9 S. Rep . No
. 1 0 1- 228 , IOis t Cong ., lst Sess
. at 370 (1989 )
. 10 S ee dis cuss ion ofend ang ennent in , e.g . • Dagu e v . City of Burlington , 935 F
. 2d 1343, 1 356 (2d Cir. 1991) (RCRA § 7002) ; United States v. Conservation Chemical Co ., 6 19 F
. Supp
. 1 62 , 192 (W
. O
. Mo . 1985) (CER C LA § 106)
. 11 541 F
. 2d 1 (D.C. Cir. 1976 ).

### 5 requiring th e reduction of lead in gasoline when there was no finding of t he presence of actual harm from exposure to airborne lead
. Th e Court sai d : When one is en dan gered , harm is threatened; no actual injury need ever occur . . .. A statute allowing for regulation in th e face of da nger is, neces sarily , a precautio nary sta tute. Reg ul atory action may be taken before the t hreatened harm occurs; ind ee d , the very existence of such precautionary legis latio n would see m to demand t hat regu latory action precede, and , o ptimally , prevent , the perce i ve d threat (e mph asis added). 12 In Reserve Mining Co v . Environmental Protection Agency , 13 the co urt simi larly interpre te d the term " endan ge rin g" und e r § 1 1 60( g)(l) of the Federal Water Pollution Con tro l Act 14 in a case in volvi ng a sbestos discharges into Lake Superior. The Court stated t hat "Congress used the te rm 'endanger in g ' in a precautionary o r p reventive sense , a nd , therefore , evidence of potential harm as well as actual harm comes within the purview of that term. " 15 l n Reserve , relief was based on " an acce ptabl e but unpro ved medical th eory" that in ges tion of a s b estos fibers mi ght cause cancer . 16 The Court in Re serve, however, indi cated t hat the term "e ndan gerin g" under 

### § 1160(g)( 1) connotes a "lesser r isk of harm " than the phrase "imminent and substantia l e nd angerment. " 1 7 E PA, therefo re , should d etermine that the threatened o r potential harm is " imminent" and "su bstantial " before initiating action under §303. b
. " Imminent" E P A believes that an endangerment is "immi nent" under §303 where present conditions indicate a th reat of harm to t he publ ic health , welf are or the envi r onment, no matte r how di s tant the manifestation of actual harm may be , as well as where con diti ons indi cate an imme diate threat of harm. As the 1970 Senate Report on §303 states : The levels of co nce ntrati o n of air polluti o n agent s or co mbinati o n of agents which substant ially endanger heal th a re le vel s which shou ld never be reac hed in any community. When the pre diction can reasonably be made that such elevated

12 E thvl , 541 F
. 2d at 1 3 (D
. C
. Cir. 1976)
. 13 514 F
. 2d at 492 (8th Cir. 1 975). 14 The 1 972 amendments to the F ederal Water P ollution Control Act , known as the C lean Water Act , a dded §504 , the present immin ent and substantial endange rme nt stand ard for wate r po ll ution control. 15 R ese rve , 5 14 F2d at 528 (8 1 h Cir. 1975)
.. 16 ld
. , at 529
. 17

### ..Jsl, at 528
.6 levels could be reached even for a sho rt period of time--that is that they are imminen t--an emergency action plan s h o uld be implemented
... (emphasis added). 18 Courts have interpreted the term " immi nent" und er other environmental statutes to include situations where present conditions indicate there may be a risk to health or the environment , 1 9 even though the harm may not be realized for years ? 0 It is not nece ssary for the endangerment to be immediate or tantamount to an " emergency " to be imminent and warrant re li ef2 1 The Court in Dague v. City of Burlington , for example , fou nd an immin ent endangerment in a RCRA case involving a municipal landfill t h at was leaking approximately 10% of its leachate containing low levels of lead in to an adjacent cattail mar s h
. Lead in test wells su rr ounding the landfill was generally below the maximum contaminant level for drinking water , and no actual harm was s h ow n to the marsh. There was evi dence , howeve r , th a t the leachate from the landfill was toxic to freshwater aquatic life , includ in g at least one vertebrate in the food chain , and an expert testi fied that , in a system such as the cattail marsh where there is a hig h to lerance for toxic chemicals, signs of stress may appear only after a latent stage of deterioration ? 1 The Court concluded that there was a n immi nent endangerment to the cattail marsh even though the harm would not become apparent until some time in the future
. Thus, it is the risk of harm that mu st be " immi nent. " The actual harm its elf may not eventuate or be fully manife s t for a period of many years, if at all ? 3 Moreover, even where the conditions giving rise to the ri sk have been present for some tim e, EPA is not precluded from addressing them as an imminent endangerment. 24 Contaminants that lead to chron ic health effects, as well as acute health effects , may be considered to cause imminent endangerment. 2 5

18 S. Rep . No
. 91- 11 96 , 9Jst Cong
. , 2d Sess. 36 (1970).
19 See , g., Dague , 935 F
. 2d at 1356
. 20**See ~-**  United States v . Valentine , 856 F. Supp
. 62 1 , 626 (D
. Wyo. 1994); Conservation Chemical, 619 F
. Supp
. at 194
. 2 1**See ,**  Valentine, 856 F
. Supp
. at 626 (citing United States v Waste Industri es, Inc ., 734 F
. 2d 159 (4th Cir. 1984) ; but see, Outboard Marine Corporation v . Thomas , 773 F
. 2d 883 (7th Cir. 1985) ( " This grant of power (under CERC LA § 106], however, applies only in emerge ncy situations. " )
22 Dagu e v . Citv ofBurlington , 732 F
. Su p p . 458 , 463-64; 468-69 (D
. Vt. 1989)
. 23**ee ,**  Conservation Chemical , 619 F. Supp
. at 193- 194
. 24 See In Re FCX. Inc
. , 96 B
.R. 49 , 55 (Bkrtcy
. , E.D.N
. C. 1 989) , interpreting CERCLA § 1 06 ("even w hen th ere is an inordinate delay [by EPA]., the court must find an immedi ate danger to public health if in fact on e exis ts " )
. 25 Conservation Chemical , 619 F. Supp
. at 194.7 EPA, therefore , may properly take action to abate air emissions under §303 even though the harm it se lf may not be immediate, and the amount of time for harm from such e missions to become apparent is uncertain
. This permits the Agency , for example, to act to seek abatement of emissions reasonably believed to be carcinogenic , even though it is uncertain how long it would take for the emiss ions to result in actual harm to individuals
. c. " Substantial " Courts have found an endangerment to be "s ubstantial " under other environmental statutes where there is a reasonable cause for concern that health or the environment is at risk
. 26 It is not necessary to quantify the endangerment for it to be co nsidered subst anti al. For example, proo f that a certain number of people will be exposed or that a ce 11 ain number of deaths w ill occur is not required. 2 7 A number offactors , such as the quantities of the hazardous substances involved , the nature and degree of their hazards , o r the potential for human or env ironmental exposure, may be considered in determining whether there is a reasonable cause for concern. In any given case, one or tw o factors may be so predominant as to be dete rminative of the iss ue 28 For example , the Court in United States v . Conservation Chemical Co
. found a "s ubstantial " endangerment under CERCLA 

### § 106 , where numerous hazardous substances from chem ical wastes were present and being relea se d into the environment from a site, and there was a risk that humans or w ild life might venture onto the s ite and come into contact with the substances. 29 The Court in United State s v . Vertac Chemical Corporation found the chemica l dioxin to be presentin g a " reasonable med ica l co ncern over public health, " and thereby to be constituting an imminent and substantial e ndangerment to health under RCRA §7003 , where t he chemical was widely bel ieved, but not fully proven , to be hazardous
.30 E PA interprets th ese decision s to mean that an endangerment is
" substantial " under §303 where there is a reasonable cause for concern for public health. welfare o r the environme nt if remed ial actio n is not taken
. Thu s , §303 pro v ides authority to address threats to public health , welfare or the environment in a variety of circumstances , and is not limited to situations involving pollution concentrations associated with " emergency" levels or severe effects. 31 Sect ion 303 s hould not be used where the risk o f harm is co mpletely s peculati ve or where the threatened harm is

26**ee, ,**  Conservation Chemical Co. , 619 F
. Supp. at 1 94
. 2 7 Id
. 28 ld
. at 194-1 95.
29 ,llL at 195
. 30 489 F. Supp. 870 , 885 (E.D
. Ark
. 1980)
. 31 See 59 FR 58958 , 5897 0 (Novemb er 1 5 , 1 994) discussing th e authori ty to us e §303 to address s ituations where health-based , ambi ent air target or trigg er levels are exceede d
.

### 8 in substantial. 32 If
. however , the Agency can s how that the sus pect emissions are crea ting a nonspecula tive " reasonable concern" that pu bli c health, welfare o r th e enviro nm e nt is at risk of harm , action under §303 is appropriate. d
. " Is presenting " The prefatory language in §303 differs from th at of RCRA §7003 and CERCLA §106
. While §3 03 prov id es that EPA may act when a pollu t i o n so urce o r co mbination of so urces " is pre se nting " an imminent and subs tantial endangerment , R CRA §7003 and CERCLA 

### § 106 au thorize EPA to act when co nditions " may present, "o r " the re may be, " respectively , an imminent and su bstantial endangerment. In Dagu e and other deci sio n s , th e phrase " may present" has been inte rpre te d as "ex pansive language" indi ca tin g t he Congressional in te nt " to con fer upo n th e cou rts th e autho rity to grant affirmative equitabl e relief to the extent neces sary to elim inate any 

### risk po sed by toxic wastes'' 33 Given the legis lative history of this pro vis ion, as discu ssed earlier , it appear s that Congress did not intend to create less pro t ectio n for the public or th e environment than under other e nvi ronm e nt al statute s, an d t herefore may not have intended an y difference in me an in g from t he s li ght diff e rence in text. At worst, o ne co uld argu e that the diff ere nce in lan g uage may mean that the emiss ions that wou ld pose the threat be either ongoing o r reasonably predi cted , a s distin c t from theoretically potential emi ss ions. EPA does no t be li eve that this difference in prefatory language or the judi cial in terpretation o f " ma y p resent" undermines th e application to §303 of establ ishe d c a se law interp retin g the phrase " immin e nt and s ubst antial endan ge rment " under o th er statutes. In eith er eve nt, the " is presenting " requirement is clea rly met when there are o ngo in g emis s ions that e ndan ge r pu b li c health , welfare, or the e nv iro nment. The " is presenting" requi re ment can also be satisfied when the sou rce is intermittent. F o r example , a sou r c e might operate a proces s that period icall y emits a hig hly toxi c air po llu ta nt. I t is not necessary for EPA to wait for the emissio n s to occu r b efore issu in g a §303 o rder to abate th e endange rment. An endangerment can be p rese nt ev en if it is not o n a continuous basi s. 2. T he meaning of " public health or we lfare, or t he e nvironm e nt " As dis c u ssed above , th e 1990 Amen dm e nts e xpanded the standard under §303 fr om " imminent and s ub s t ant ial e nd ange rm e nt to the health of persons" to ' ( immin e nt and s ubstan t i a l endangerment to pub li c health o r we l fare , o r the environment. " T he use o f the wo rd " or" indi cates that an endangerm ent to either pu blic health, welfare , or the e nvironment alo ne , will warrant relief under §303**~**

32 See H
. R
. Rep . No
. 95-29 4, 95 th Cong ., 1st S ess . 32 8 (1977)
. 33 D agu e v . Citx of Bur lington , 935 F.2 d at 1355 (c iting United States v. Pric e, 688 F
. 2d 204 , 2 113 (3 rdCir
. l98 2)
. 34 C o nservatio n Chemi cal, 6 19 F
. Supp
. at 192
.9 The Senate Report on the 1990 Amendments states that broadening §303 to apply to harm to the env ironment " is important to enable EPA to address emergency threats to ecosystems in instances where there is no readily demon s trable immediate threat to human health
. " 35 Th e Report furthe r states that, for example, where a facility is emitting pollutants that are threatening to impair an area's ecosystem, §303 will allow EPA to order the facility "to take necessary steps to eliminate the threat to flora and fauna ." Congress , therefore , clearly intended the word
" environment " to include plant and animal life and ecosystems generally , in the ab se nce of threatened harm to human health
. Additionally, case law under RCRA defines " environment" to encompass the air, so il and water , including gro und wate r. 36 The Senate Report doe s not address t h e expansion of §303 to welfare. The term " welfare " is defined in the Act , how e ver. Sec tion 302(h) states: All language referring to effects on welfare includes , but is not limited to , effects on soi ls, water, crops, vegetatio n , manmade materials , animals, wildlife , weather, visibility, and cli mate , damage to and deterioration of property, and hazard s to transportation , as well as effects on economic values and on per sonal comfort and well-being, whether cau sed by transformation , conversion or combination with other air pollutants. Thi s st atutory definition of " welfare " is broader than, and encompasses the elements of,
" environme nt " as defined above
. The court in Conservation Che mical also fo und under CERCLA that "[t]he term 'public welfare' is exceptionally broad , and encompasses ' health and safety, recreational, aesthetic , env i ronmental and economic interests ." 37 Th e court stated further that
" [t]he expansive scope of the terms ' public welfare ' and 'e nvironment ' mandates the conclusion that Congress intended injunctive relief to issue whenever any asp ec t of the nation ' s interest in a clean environment may be endangered imminently and substantially by a release ." 38 EPA's authority unde r §303 , therefore , may be used to abate imminent and s u bstantial endangerments affecting a broad spectrum of concerns . B
. 

### Any Person Causi ng o r Contributing to the Alleged P ollution 1
. The meanin g of"any person " Section 303 pro vides that t he Administrator may take action to restrain " any person " causing or contribut in g to pollution from a source or combination of sources that is presenting an imminent and substantial endangerment to public health or welfare , or the environment. Section

35 S
. Rep. No
. 101-228 , lOlst Cong ., 1 st Sess
. 370 (1989)
. 36 Lincoln Prop erties, 23 Envtl. L. Rep. at 20671-72.
37 Conservation Chemical , 619 F
. Supp. at 19 2.
38 !.Q..10 302(e) ofthe Act defines " person " to include " an individual, corpo rati on, partnership, association, Sta te , municipality, political subdivis ion of a State, and any agency, department , or instrumentality of the United State s and any officer, agent, or employee thereof." Th us , any entity s pecified in §302 (e) that is causing or contributing to the alleged pollution may be subject to §303. Such a person could includ e, for example, corporate officers , the individual s who own or operate a polluting source, the lease holders or contractors of same , or the corporate entity itself. A s discussed in the following sectio n , thjs could also include past ow ners of a facility who caused or contributed to a pre se nt endangerment. 39 2
. Th e meanin g of"causing or co ntribu t in g to" the alleged pollution Section 303 may apply whenever there is evidence that " a polluti on source or combination o f sources " is presenting an imminent and substantial endang e rment , and EPA may bring action to restrain " an y person 

### causing or contributing to the alleged p oll ution to s top the emission of air pollutants causing or co ntributin g to such pollution " (emphasis add ed)
. 

### C

ausati on , in the air p oll ution co ntext , is rooted in commo n la w . In past decisions, the co urts have recogni zed that air p o llutants can be distributed over a large geographical area and pollution**it~uries** may be the re su lt of cumulative effects of several emissions from different sources. 40 This can som etimes make it difficult for a plaintiff to pro ve that a parti c ular defendant was the source of th e pollution that caused the injury
. In a typical common law negl igence action, the plaintiff must s how that it was an action or inaction of the defendant which caused the injury
. This is causation-in-fact. H owever, the courts have recognized that it is often difficult to show caus ation-in-fact in ton cases involving toxic agent s and ha ve relaxed th e require ment that the plaintiff mu st show cause in fact. Court s will usuall y find a defendant liable if defendant 's conduct was a substantial factor in causing the alleged endan ge rment. Plaintiffs are also aided by the theory of joint and several liability which has been app lied to independent dischar ges of air pollutants where the e ffects of each plant ' s pollution was impossible to determj ne . 41 E PA believes t hat the Agency may proceed with a §303 action when the per so n ' s conduct is a substantial factor i n caus in g the alleged harm. EPA may take action against any per s on who is 

### contributing to the emissions of the air po llutant s creating an e ndang e rment, re g ardless of the extent of that person's overall contribution to the probl e m. For example , o n November 18 , 1971, the Di strict Court for the Northern Di st rict o f Alabama issu ed a temporary res training o rder under §303 curta iling operation s at 27 steel39 EPA not es that in practice , §303 o rd ers are usually issued to organi zat ions , not individual s . 40 Re itze, Arn o ld , Overview and critique : a century ofair pollution control law : what ' s worked: w

hat'sfailed; what might work
. 

### 21 Envtl. Law 1549 (1991)
. 41 Michie v. Great Lakes Steel , 495 F
. 2d 213 (6th Cir.) , ce rt. den ie d , 419 U
. S
. 997 (1974)
.11 making facilitie s near Birmingham, AJabama
. 42 The avera ge particulate matter levels in th e precedin g 

### 48 h ou rs was fou nd to be 725 micrograms per c ubic mete r , le ve ls which were considered harmful to human health. EPA's complaint did not allege the s p e cific co ntribu t i on of each facili ty to the ov e rall parti cu late matter le vels. It simply stated that " the Administrator of the Env iron mental Protection Agency has received evi dence t hat 

### a comb ination of pollution sources, including the defendant's plant s, are presenting a n imminent and substantial endan ge rment to the health of pers o n s b y di sc hargin g particulate matte r into the air" [emphas i s added]. EPA interprets the phra se " contributing to " under §3 03 to mean , as it was exerc ised in the above-referenced action and as j udiciall y interpreted und er RCRA, " to have a share in any act or effe ct." 43 It i s n ot necessary for the pe rson to be directl y controllin g the activitie s that are c reating an imminent and s ubs tantial endangerment to is s ue an order or take o ther action under §30 3. 44 Nor i s it nec essary that a per son be re spo nsible for a specific share oft he eff ec t. A co mbinati o n o f air pollution so urc es may pre se nt imminent and s ubstantial endan g erment even though the e mi ssio ns from a single so urce , if considered al one, may be of le sser concern. In some cases, it may b e nece ssary to addre ss an individual source u nder §303 even though t he action wo uld n o t complete l y eliminate th e pollutant(s) of co ncern . I t may also not be ne cessary for th e per son to own th e p o llu t ing source . The United States so ught an injun ction against the own ers of a site under C E RCLA §106, R CRA §7003 , and CAA §3 03 to add ress e ndangerment fro m asbe s to s co nt aminati on . The d e f e ndant s owned o r operated an asbestos m ill at the s ite until 1974. Pri o r to c losing th e m ill , the ow ne r s used asbestos-containing mill tailin gs t o grade the property for mobile home pl o t s, and offered the lo t s for sale in 1 9 7 3. Fifty lo ts were s old at a s ite of so me 17 ac res . Th e Court found that , under §303 , the residential subdivis io n a nd a seco nd, n earb y mill that wa s still in o pera t ion we re " pollu tion sources or a co mbin ati o n of so urces " a nd that t he pa st owners of the site " caused or are contributin g to s u c h pollution
. " Th e Court orde red th e defendants , who included individuals and co r poration s that f o rm erly ow n ed the s ubdi vided s ite , to abate the re leases an d th reatened releases of as bes tos in the are a. 45 Thu s , E P A beli ev es th at under §303, that t h e Agency may take action to r est rain any person(s) wh ose actions (or inact ions) a re resp o n s ible for c reatin g emissi o n s of air po llu tants

42 Uni te d States v . U. S. Steel, No
. 71- 104 (N.D.Al , N ov. 18 , 1 971 ). Meteo rol ogical conditions improved on November 19 , 1971
. an d th e o rde r was vac ated
. 43 United Sta tes v . Aceto Ag ricultu ra l Che mical Com ., 872 F. 2d 1373 , 1 38 4 (8th Ci r. 1 989). Also , see Zand s v . Nel son , 779 F
. Su pp . 125 4 , 1264 (S
. D
. C a l. 199 1) (Th e Court held th at a person who operated equipme nt duri ng the tim e that solid waste l eak ed fr om that equipment to be a "co ntributo r " )
. 44 Id. , a t 1383 (The Court held t hat a pers on co ntributed to th e handlin g and disp osal of pes ti cide related was tes because that person had (1) co ntracted with a company that fo rmul ates conune rcial gra de pestic ides thr ough a proces s t h at inherently i nvol ves t he generation of wastes . and (2) maint a in ed own er s hip of those pe s ti c ides throughou t th e proc ess).
45 U
. S
. v. Metate Asb estos Com
. , 584 F Supp. 11 43 (D
. C. Az
. 198 4)
.12
w hich are presenting the endangerment. This acti on may be taken even if s uch per so n(s) no long er own the pollution source . C
. T he Administrator shall consult with appropriate State and local authorities and attempt to confi rm the accuracy of the information on w hich the actio n propose d to be taken is based Section 303 requires EPA to consult with the State and local authorities before taking any ac ti on under t h at section and attemp t to co nfirm the acc uracy of the inf ormation o n wh ich the action p roposed to be taken is based. T he legislative history states that this consultation is required " to protect State interests and to prevent duplication of effort ." 46 Pri or to 1 990, one of the prerequisites for taking action under §3 03 was that " the appro pri ate State o r local authorities have no t acted to abate such sources " (§303 , as amended in 1977 and codified in 42 U.S.C
. 7603). I n r emoving this prerequisite fro m §303, Congress removed a r e quirem e nt that h ad the poten tial t o delay Federal action. 47 However , the present co n s ultati on requirement should not be viewed as an obstacle to effective action by E PA. It is not a co ncurrence requirement, but rather one of notification and corrobo ration prior to taking action
. In consu lting with th e ap prop ri ate State or local auth ori ty , EPA sh oul d dete rm ine wheth e r t he information upon which EPA intends to act is accurate. 

### In assessing the scope of action to be taken under §303, EPA may take into co n siderati on any action take n by State o r local authorities. However, the existence o f state o r local act ion doe s not bar E PA from proceeding under §303. 

### ID. WHEN AN D HOW TO APPLY SECTION 303 A. Gen eral Appli cability Action under §303 is appropriate w hen the re is a reasonable cause fo r concern that public health , we lfare, or the enviro nm e nt is end angered
. The degree o f endan ge rmen t or actual harm warranting action u nder §303 is a fact- spec ific evaluation that may be based on witness statements , medical reports , expert o pini on , or other evidence
. However , in no case is a formal risk assessment required. As discussed above, §303 is a pre cautionary authority, intended to be use d without delay "u pon receipt of evidence" that an e ndan ge rment exists
. The courts hav e recognized that sc ientific proof of an endangerment does not always exist and have ruled in favor of the Agency whe n evidence c reated a sufficient inference of substanti al risk or actual harm . 48

46 S. Rep. No
. 1 0 1

- 228 , JOi st Congress , 1' 1 Sess ., at 370
. 47 Fo r furth er di sc ussion o n the effect of this pre - 1 990 provision
. see pages 5, 6 , and 7 of th e E PA g uidance document e ntitl e d Initiation ofAdministrative and Civil Action Under Section 303 of the C lean Air Act During Air Po llution Eme r g encies, S e ptem ber 15 , 1983
. 48 ln United States v. Yer t ac, 489 F. Supp., 870 , (E
. D
. 

### AR, 1980) , t he court ml ed that the public was en dangered by the re l ease of dioxin, whic h at the time was considered toxjc under acceptable but unproven medical th e o ry. In Val e ntine, the court ruled that scienti fi c proof of harm was not required , rejecting a n argument that EPA ' s failure to perfo nn post-mortem analyses on each dead a nimal fou nd at13
EPA may r e l y o n sci e nt ific studie s, ex pert opinion, the conclus io n s drawn during the p romulgation of Nati o nal Ambient Air Quality Standards and other rules , the findin gs of other gov ernmental agencies s uch as the Agency for Toxic Substances and Disease Registry (ATSDR) or s tate environmental or public health agencies and other credible eviden ce. 49 For example , if ATSDR issues a health consultation describing a public health threat po se d by a particular facility , the issuance ofthat document is suffic ient for a §303 action. EPA should also u tilize witness s tatements such as affidav it s from fo rm er or current emp lo yees or resid ents if the pollution so urce is located near a residential area . Statements from c redible witnesses that can be corroborated by ambient measu rement s or other information could pro vide a su fficient basis for the issuance of the §303 order
. Section 303 app lie s to a broad range of endangerment sce narios
. I t applies regardl ess of w hether a pollutant is regulated , or how it is r egulated
. 5

# ° For ex ampl e, e ndangerment from a power plant' s emissions of sulfur dioxide could be addressed, eve n if the plant is in compliance w ith its regulatory e missions limits , or a hazardous air pollutant could be addressed , even if t here are no appli ca ble reg ulations co ntrolling the emissions
. S ecti o n 303 can also apply to mixture s of pollutants, even if a spec ific individual pollutant cannot be clearly associated with a potential or observed effect. 5 1 For example , e missi ons of hydr ogen sulfide , a gas that does not normally affec t individual s with asthma , can ox idize into s ulfur di ox ide which aggravates the dis ease even at re latively low concentrations. Section 303 may also be used in co mbin atio n w ith § 114 to require information from a so urce when , for example, the Agency is unable to c haracteriz e the typ e and l ev el of pollutants , o r e ngineerin g information is ne ede d to consider the appropriate injunctiv e relief In addition to public health and e nv iro nm ental harm , it sho uld be s tressed that the sectio n can also be used when there is an endangerment to the 

### publi c welf are . As discu sse d above , the Act define s welfare broadly . Action under §303 may also be taken notwithstanding the len gth of time an endangerment has persi s ted
. For example , actio n ma y be taken to ad dres s unacceptable emiss ions from a fac ility, even if that facility ha s been in operation for decades
. A case in point is EPA ' s 1971
the si te prec luded inf e r

e nc e as to the ca u se of d e ath. 4 9 EPA discu ssed th e po ss ibility of es tablishin g ambient thres holds th at, if exceed ed , wou ld clearly tr

igger the ab ili ty to u se §303 autho rit y. See, e. g ., 5 9 FR 589 58 (November 199 4) , 60 FR 12492 (March 7, 1995) , and 62 FR 210 (January 2 , 1997)
. This would merel y es tab lish clearl y- r ecognized thres hol d s, and would not preclud e the use of §303 for lower ambi ent pollutant le vels. 50 An admin i s tra tive order or civil action ma y be taken " notwithstandjng an y other p rovision " of the Act. CAA S ectio n 303. 5 1 Section 303 a ppli es to e mission s of"ai r p oll uta nts ," which is defi ned in §302 as "
... an y air pollution age nt or combination of s uch ag en t s ... [including].
..an y prec ur so r s t o the f o rm atio n of any air pollutant. "14 action to address particulate matter pollution from 27 steel mills in Alabama. The steel mills had been in operation for many years before action was taken. It was EPA's 

### receipt of evidence (§303) , i
. e ., the particulate matter data, that pro v id ed a rea sonable cause for co ncern and allowed EPA to initiate the action. Conversely , EPA may also take action after harm has occu rred to prevent a future recurrence. For example, EPA's action against Minerec Mining Company occurred after releases of hydr ogen sulfide had sent people to the hospital. The action was a precautionary measure, intended to prevent further harm. Taken as a whole, EPA may use its authority under §303 to address a broad spect rum of non -sp ecu lati ve adverse impact s , or diverse combinati ons of impacts , of air pollution
. EPA may consider one or more of the following general factors (this list is not exhaustive):
o T ox icity and concentrati on of pollutant(s). o Effects of mixtures of pollutants
. o Exposure pathway
. o Population se n s itivity
. o Potential for acute ex p osure. o P ote ntial for chronic exposu re . o Prevailing meteoro l ogical conditions and effect on potential expo s ure. o Likelihood of endangerment , even if effects are not observed
. o Bioaccumulation of pollutant. o Visual signs of stress o n veg etati on. o Sensitivity of birds, fish , and wildlife to pollutant. o Effects on the public welfare, s u ch as visibility impairment , crop damage , accumulation of toxic metals in soil, loss of fishery resource from a toxic pollutan t , deterioration of property values, corrosion of structures, etc . . Examples of imminent and s ub stantial e ndangerments under §303 coul d include, but are not limited to: o A carcinogenic air pollutant from an indu strial facility is found at concentrations of concern for chronic human exposure . o Sulfur dioxide emissions from a so urce or co mbination of sources that cou l d, under certain meteorological conditions common to th e area, aggravate asthma in sensitive populations
. o A toxic metal is emitted to the air , threate nin g the fl ora and fauna of a nearby natural area . o Pollution from a source results in damage to and d ete rioration of property . o Insectic id e spray often drifts into a nearby r esi dential area. o A facility th at is exempt from state implementation plan requirements emits high concentrations of particulate matter. o Pollution from a "grand-fathered" o il refinery adversely affects down-wind residential areas. Other authorities und er the Act co uld also be applied in the above situations. The decision to use 

### §303 should be base d primarily o n whether suc h other authorities wi ll address an15 imminent and substantial endangerment in a timely manner . 52 Section 303 may a lso be necessary when there are practical impediments to the use of other authorities in specific situations. For example, §303 may be appropriate when a revision to a State Implementation Pl an would take too long to address an endangerment, or emissions ofHAPs present an endangerment even though the facility is in compliance with emissions requ irements. Section 303 may also be appropriate when there are no regulat ory requirements that are cu rr ently applicable to a particular so urce . The fo ll owing discussion addresses so me of these considerations. B
. Criteria Air Pollutants Section l 09 of the Clean Air Act directs EPA to promulgate regu lations setting National Ambient Air Quality Standard s (NAAQS) for s ix criteria air pollutants
. The se standards are intended to prote ct public health (the primary standards] , and public welfare [the seco ndary standards]
. EPA periodically reviews the effects of criteria air pollutants and may fro m time to t i

me promulgate revised standards
. Such revisions undergo notice and comment rulemaking
. The final Federal Regi ster notice is E PA's formal position on the effects of the relevant c riteria pollutant. In addition to the notice, there may be inf ormation in the rulemaking docket which may be relevant to a spec ific situation
. In addition , Subpart H and Appendix L of the State Implementation Pl an regulations at 40 CFR Part 51 outline a phased emi ssions reduction program for air pollution "emergenc ies " i n volving criteria pollutants and the health of persons . This " emergenc y episodes program" was d esigned to supplement the NAAQS by provi ding additional protectio n in situations not effectively addre ssed by them. The epi so de criteria and associated abatement actions are preventative measures designed to e nsure that certain pollution concentrations

-- "s ignificant harm leve ls "

-- never occ ur. Sp ec ific action lev e ls are prescribed for sulfur dioxide , particulate matter, carbon monoxide , ozone, and nitrogen dioxide. In increasing degre es of seriousness , the levels are " alert," "warni ng," and " emergency ." The "wa rnin g " an d " alert " le vels are designed to ameliorate situations before the emergency state by application of moderate controls
. The emergency lev e ls are those at which "signjficant harm to health" is expected to occur if action is not taken to prevent air quality from deteriorating further
. While the " emergency " level can be clearl y construed to p re sent an immin ent and substantial risk to publ ic health , abatement measures may be required at lower level s to prevent air quality from deteriorating further , or to avoid l ess serious health effects that can occ ur at th ose levels
. Moreover , the emergency ep isodes program might not provid e an effective response for se nsitive populations, suc h as children , the elderly, or

52 The Hou se Report on § l 08(k) of the Air Quali ty Act of 19 67 , the predecessor of §303 , states that the provision " is not intend e d as a substitute procedur e for chronic or ge nerally r ec urring pollution probl ems , which s hould be dealt wi th under th e other provis i ons of the act. " H.R. Rep. No. 728 , 90 111 Cong
. , 

### pt Sess
. 11 9 ( 1967)
. In Re illy T ar & Chemical, the court no t ed that while Con g r ess did not intent for EPA to us e em er

gency powers au thoriti es as a substitute for other stat utory authorities , the " broad range of r esponse autho ri ties provided by Congr ess .... suggests that it intended to provide EPA fl ex ibility
... " i11 c h oos ing the appropriate statutory respon se .16 people w i th asthm a . 53 Also, these level s are not intend ed to protect public we lf are o r th e e nvironment. Flexibility is essential and appropriate action s h o uld be taken pu rsuan t to §303 wheneve r necessary to prevent the s i gnificant harm leve ls from being reached. C. H azardou s Air Pollut a nt s Section 112 of the Act requires E PA to establish r egu latory standards for emiss ions f rom sta ti o nary sources th at emit one o r more of the hazardous air pollu t ants (HAPs) li s t ed in the Act. T he EPA Office of Air Quali ty P lanning and Standards ( O AQPS) promulgates technology

- b ased (as opposed to risk-based) " maximum achievab l e control technology " (MACT) standards and "g enerally available control technology " (GACT) standards governing HAPs und er 

### § 1 12(d)
. In a ddition, Co ng re ss provided for a mean s of future oversight to ensure t h at t he de s ired protec t ion f rom h azardous air pollutants was indeed occ urring
. Under 

### § 112 (f), Congress r equired EPA to promu l gate more strin ge nt risk-based standards withi n 8 years after promu l gatio n ofMACT s tandards if promul gat ion of such stand ard s is necessary to p rovide an ample margin of safety to protect publ ic health , or to p revent an adverse e n v ironmental effec t. O AQPS de ve l ops meth odologies and p r ocedures for dete rmin ing residual risks to heal th a nd the environ m e nt. However , s inc e this process might not lead to add i tional r isk-base d s tandards unti l 8 years after promul gation of a MACT s t andard , an imminent and substantial e ndangerme nt could ar ise eve n if a facilit y was in co m p lian ce with th e cu r ren t MACT or GACT s tandards. Section 303 would be a n appr o priate auth o rity for add r ess in g s uch ri sks
. In addition to the MACT standards, there are also efforts to address HAP s for specific objecti ves, suc h as the Urban Area Sourc e Program and the Great Waters Program
. As of this w ri t in g , there is a comprehensive effort underway t o assess t he ri s k s posed by HAP s to urb a n populat ions . O AQPS sho uld be consu lted about the r isk po se d by HAPs and to determin e the st atus ofMACT , GACT, or ri s k-based standards before a §303 ac ti on is undertaken
. It s h o uld be noted t hat the criteria po ll utants and HAPs li s ted in t he Act or E PA regu lati ons ar e not the o nly a ir p oll utant s for which action under §303 may be appropriate
. As noted above , §302 d e fines " air pollutant " broadly
. For example , a chemical that is used as a pes ticide may also be an air p oll ut ant , and a circ um stance cou ld arise where the po llut a nt presents an imminent a nd sub s tan t ial endangerment. There may also be chemicals emanating from industr ial o r other so u rces that are not listed unde r § 1 12 which pose a cause for concern . Und er C ongress i onal man da te, ATS DR prod uces T ox ico lo gical Pro file s fo r a la r ge nu mb er of poll ut ant s, includ in g HAPs
. Dra ft profiles undergo public comment and rev iew before final p rofiles a re is s u ed
. The profiles typically in clude a comprehensive analysis of t he health e ff e cts from inhal ation , o ral intake, and d e rmal exp osure; th e mec hani s ms of action ; interac ti ons w ith other chemicals; identity of susce ptibl e populat ions; adequac y of the data , and other

53 On January 2. 1997
. EPA publi shed a prop ose d " inte rve ntion leve l program " und e r the authority of §303 to add ress hi g h 5-minute s ulfu r dioxide peak l eve l s in certain areas of the cou ntry . The inte n t is to provid e prot ection in addition to th e ambient standard s for as thmatic in di vid u a l s [ 62 FR 210

- 222)
.17 information that may be pertinent to action under §303
. Toxicological profiles are available from the Natio nal Technical Inf ormation Service (contact: 800-552-6847)
. The Occupational Safety Health Administration (OSHA) establishes standard s for exposure to air pollutants in side the workplace
. Although not directly related to ambient air , these standard s provide one point for assessing the risk to the public when such pollutants , e . g ., various organics, become airborne in a community. Computerized health effects data bases, such as Toxline and Chemline, may also be useful. These data bases are run by the National Library of Medicine and may be accessed th rough the EPA Headquarters or regional office libraries. 

### IV. 

### RELIEF AVAILABLE UNDER SECTION 303 Section 303 authorizes E PA to "bring suit in th e appropriate district co urt " to seek certain relief It also au th orizes the Agency to is s ue admini strative orders in the eve nt that " it is not practicable to assure prompt protection
. . .by commencement of such civil action
.. . . " lfthe circumstances at a site requir e immediate action, an administrative order can be iss ued as soon as EPA has eviden ce satisfying the statutory c riteria
. Howe ver, under §303 , these orders " remain in effect for a peri od of not more than 60 days " unless EPA brings suit in district court prior t o the expiration of an administrative order , after wh ich time the order remains in effect for an additional 14 days or longer as may be authorized by the court . EPA coordinates closely with t he U.S
. Department of Ju st ice when issuing administrative orders
. Such coordination ensures that judicial action can follow in a timely manner if injunctive relief is required for more than 60 days. The scope and nature of an investigation should be governed by the specific facts of the matter and the underlying p o li cy for the inclusion of §303 authority, that is , prot ect ion of th e public or the environment before any harm can occur. EPA presumes that , in reviewing a d ecision t o act , the courts wi ll consider whether the agency acted rationally given the facts available to it , and that the action was proportional to the endangerm ent presented
. Thus, where an acute risk is present and may occur at any time, EPA anticipates that a decision will be needed quicker, and perhaps with less information , than in cases where the risk of harm is l ess acute or is not likely to occur until some certain future time
. While EPA and other autho ritie s are mindful of th e potenti al adverse economic and othe r impacts of a §303 order, the nature of this provision i s s uch that where public health is at stake, it may not be appropriate to delay is suance of an order while definitive information is developed on such matters , or to wait un til the cause, source, and extent ofthe risk is fully understood. Rath e r, it may be appropriate in some instances to use §303 to provide sufficient protection to the public or the environment while more information is developed a nd a perm anent sol uti on arises. A
. Judicial Action 1
. Referral of a judicial action to the Department of Ju stice Any judicial action under §303 would be brought by the United States Department of Justice (DOJ) and requires referral o f the action to 

### DOl
. The form and length of a judicial referral18 often vary depending u p on the need for ex p editi ous intervention b y the district court. For examp le, a (( letter refe rr al" that sets f orth the c rit ical information in a concise manner may be app r opriate in emergency situations. EPA should also seek DOJ involvement during the informati on gathering an d investigative process. DOJ' s involvement prior to formal r eferral s ho uld facilitate the use of " l etter ref e rral " proc ess or accommodate abbreviated j ud ic ial referrals. On ce an action is filed in district court , DOJ will take the lead in litigating the case in accordance w ith EPA policies and the EPA/DOJ Me mo rand um of Und erstanding, and in coo rdi nati o n w it h approp riate EPA p art i cipant s. As previously sta ted , administrative o rd ers iss ued pur s uant to §303 have a maximum 60- o r 74-day duration dependent u po n whe t h e r EPA is seek in g s ub se quent judicial action
. If EPA and DOJ are unable to seekjudicial reliefupon immediate conclusion of the statutory time frame , E P A should obtain a tolling agreement or o th er similar written document fro m the pollution sou rce to to ll the 60 day clock
. T he written agreement shou ld also incl ude a notifi cation provision requiring the so ur ce to notify EPA of any oper at ional changes
. For example , if a §303 order curtails operations at a manufacturing facility , EPA s hould obtain a tolling agreeme nt extending the duration of the order and reques ting that the po ll ution source provide notice to EPA if it intends to resu me fu ll pro du ct ion . 2
. Judicial relief a v ailable Sect i o n 303 au th orizes the court s to iss u e injun ct ions rest rainin g activi ti es that may present an imminent and substantial endangerm ent or to take any action " as may be neces sary." This implies that the judicial relief requested should be limited to that which is ne cess ary to add ress th e e ndan ge rm en t. While exerc ising its di sc r e tion to iss ue an in j un ct ion , a cou rt m ay order either a specific action or a restraint fro m acting. In addition , it may use its discretion to order all or part of the relief requested or to order other re lief that it deems appropriate
. Th e means by which a court wi ll o rder specific acti o n s o r r es traint s o n action may include temp o rary re s trainin g orde rs, preliminary injunction s, and permanent injunctions
. A temporary restraining order is an order issued by a judge that prohib i ts s p eci fied activity or otherwise maintai n s the 

### s tatus qu o unti l the court can hold a hearing on the issue. A preliminary inju nction is a judi c ial o rd e r requirin g a p erso n to take o r re frain from a spec ified action until the co urt can hold a trial on the is s ue . A permanent injun ction is a fina l judicial o rd er , which is re ached after a trial o n the me rits , that require s a person to take or refrain from a specified action
. B
. Adminis tr ative Order s Section 303 co nf e r s upon EPA the authority to issu e orders administratively without the need for civi l j ud icial actio n . These administrative o rd e rs may not b e sub ject t o pre-e nforc ement j udicial r ev iew
. 54 An order can include any action a s may be necessary t o protect public health , welfare, o r the environment. F or examp le , an order may require specific tas k s s u ch as in sta llin g

54 See Clean Air Act Am e ndments of 1990, Chafee- B aucu s Statem ent of Senat e Managers
. r e printed in Cong. Rec . 516953 , O ctober 27 , 1990.19 pollution con trol e quipment , r educi ng production, mo difyin g or s huttin g down process operations ca using th e pollution , o r closing t he fa c il ity. When t he conditions at th e s ite are not s uffici ently defined to allow a concise description of the action required, an order may req uire t he sou rce to immed iately abate th e emiss io n s and undertake any anal ysis and follow-up ac ti o n that m ay be r e quired to ensure that e ndang erment wi ll not recur . 55 An order may al so require th e respondent(s) to meet e missions performance standards or limits, rather than dictating the specific reme diation to be performed. O ther actio n s may also be ordered as neces sary. Administrative orders is s ued und e r §303 are enforceab le by the Administrator under t h e § 113 pro v isio ns for administrati ve, c ivil judicial , and crimi nal penalties
. 1
. R ecord and co nt ent o f administrative o rd e r s EP A w ill establish an admini strative re cord during the investigat ive phase to su pp ort the issua nce o f a §303 ord er. I n exigent c ircumstances this record need not be extensive, but shoul d be suffic ie nt for a reviewing body to di sce rn the re ason for the action t ake n . Wh ere time is of the esse nce , it may be appropriate to draft a short memorandum at the t ime of th e action and follow that memorandum with a more detailed s tatement as t ime permit s. The record s hou ld contain all of the evidence EP A relied on in determining whether there is an immi nent and substantial e ndangerment , includin g (but not limite d to) eye witness accounts , med ical repo11 s, sc ientifi c findings co ncern in g expo sure ef fects , and other evidence a s described above. An Admini s trative Order under §303 s ho uld include the following element s.
• A s tatement ofjurisdi ctio n -- This stateme nt sho uld set fo rth EPA ' s authority under §303 to issue the o rd e r and c ite the delegation ofth is authority to the Age n cy offic ial s ig ning th e order
. • Find in gs of fact

- - T hese s hould include the facts that demonstrate that the legal requiremen ts for is su in g a §303 o rder have bee n met and tha t the actions o rdered are necessary to p r o t ect pu blic health , welfare , or the environment.
• Conclusions of law-- T his section w ill inclu de co ncl u s ions that th e legal requirement s for a §303 order hav e been me t. In o rd e rs issu e d to more th an one person , the ord er may include a statement that each re spondent is requ ired to ca rry out each ob li gation of the order and that failure of on e or mo re resp on dents to comp ly does not affect the obli gati o n of the other( s) to p erfo rm . • Order

-- Th e o rd e r s hould identify the ac t ions to be perf o rmed and whe n they are to be com pl e ted.

55 See Trinity America Corpo ra tion , d /

b

/a Trinity Foam of Ca rolina . and Trinity Fibers of Carolina, I nc .. Order Pursuant to Sections 114 and 303 ojthe Clean Air Act, EP A R eg i on IV , O ctober 3, 199 7
.

### 20
• Enforceme nt
-- Th e order should identify the potential sanctions for non-co mpliance
. This is not required but may encourage the respondent(s) to comply
. 2
. Standard and scope of review of administrative orders As discus sed above , EPA believes that administrative orders are not subject to preenforce ment judi cial review
. However, if review is granted in the context of an enforcement action, courts will overturn an agency order if it is deem ed "arbitrary and cap rici ous." Th e arb itr ary and capricious standard gives administrative agencies broad di sc retion in deciding how to administer the law
. In addition, courts will generally examine whether proper procedures were followed, and will also consider due proce ss concerns. Due process does not necessarily mandate an evidentiary hearing prior t o issuance or enforcement of the order. Rather , the requirement is flexible and require s that respondents have an opportunity to comment on the evidence "at a meaningful time, in a meaningful manner ." 56 Although there does not appear to be a clear standard for how mu ch process is enough , EPA should provide the re spondent an opportunity to comment on the order, and to confer with the Agency regarding compliance with the order , unless th ere is reasonable cause for concern that proce dural delays could result in harm
.

56 Math ews v. Eldridge, 4 24 U.S
. 319 , 333 (1976) ; United State s v. Seymour Recycling Corp ., 679 F
. Supp. 859 , 864 (S.D
. Ind
. 1987) (citation omitted)
.