., .. 

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 conditions 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 scientific 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 12, 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: 

Regional Counsels, Regions I-X 

Director, Region I Oftir.:e of Environmental Stewardship 

Director, Region ~I Division of Enforcement and Compliance Assurance 

Director, Region III Air Protection Division 

Director, Region IV Air, Pesticides, and Toxics Management Division 

Director, Region V Air and Radiation Division 

Director, Region VI Compliance Assurance and Enforcement Division 

Director, Region VII Air, RCRA, and Taxies Division 

Assistant Regional Administrator, Office ofEnforcement, Compliance 

and Enviroruilental Justice, Region VITI 

Director, Region IX Air Division 

Director, Region X Office of Air Qu_ality 

Director, Federal Facilities Enforcement Office 

Director, Office of Air Quality 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 Administrator 

of the Environmental Protection Agency (EPA) to bring an action for injunctive relief to abate 

imminent and substantial endangerrnents to public health, welfare, or the environment caused by 

emissions of air pollutants.2 Section 303 allows EPA to initiate judicial action against, or issue an 

administrative order to, any person who is causing or contributing to the pollution to stop the 

emissions of the pollutants or to take other action as necessary. As discussed in this guidance, 

§303 is a "gap-filling" authority, providing a basis for injunctive relief for a wide range of 

endangerment scenarios, regardless of a pollution source's compliance or noncompliance with any 

provision of the Act. It also provides for injunctive relief when an air pollutant(s) is not otherwise 

regulated under the Act. 

On September 15, 1983, EPA issued a guidance document 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 light of the 1990 Amendments to the Act 

which modified §303, and to account for more recent case law under similar Federal 

1 Section 303. as amended in 1990, and codified at 42 U.S.C. § 7603, reads as follows: 

Notwithstanding any other provisions of this chapter, the Administrator, upon receipt of evidence 

that a pollution source or combination of sources (including moving sources) is presenting an imminent and 

substantial endangem1ent to public health or welfare, or the environment, may bring suit on behalf of the 

United States in the appropriate United States district court to immediately restrain any person causing or 

contributing to the alleged pollution to stop the emission of air pollutants causing or contributing to such 

pollution or to take such other action as may be necessary. If it is not practicable to assure prompt 

protection of public health or welfare or the environment by commencement of such a civil action, the 

Administrator may issue such orders as may be necessary to protect public health or welfare or the 

environment. Prior to taking any action under this section, the Administrator 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 order issued by the Administrator under this section shall be effective 

upon issuance and shall remain in effect for a period of not more than 60 days, unless the Administrator 

brings an action pursuant to the first sentence of this section before the expiration of that period. Whenever 

the Administrator brings an action within the 60-day period, such order shall remain in effect for an 

additional 14 days or for such longer period as may be authorized by the court in which such action is 

brought. 

2 Section 302(g), Definitions, 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, including 

any physical, chemical, biological, radioactive (including source material, special nuclear material, and 

byproduct material) substance or matter which is emitted into or otherwise enters the ambient air. Such 

term includes any precursors to the formation of any air pollutant, to the extent the Administrator has 

identified such precursor or precursors for the particular purpose for which the term ' 'air pollutant" is used. 
2 

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

3 This guidance 

supercedes the 1983 guidance. It is intended to be used by EPA as internal guidance only and 

does not establish any substantive or procedural rights. EPA reserves the right to act at variance 

with this guidance and to change it without public notice. 

The 1990 Amendments expanded the scope under which EPA may act pursuant to §303 

from "imminent and substantial endangerment to the health of persons" to "imminent and 

substantial endangerment to public health or welfare, or the environment." The Amendments also 

eliminated the requirement for state or local inaction as a prerequisite to EPA initiating action 

under §303, and lengthened the duration of administrative orders pursuant to §303 from 24 hours 

to 60 days. In so doing, Congress greatly increased the utility of §303. However, as of the date 

of this guidance, EPA has exercised its new authority against a specific source only three times4 

As discussed below, EPA does not believe that Congress restricted EPA's authority to act under 

§303 to situations where people are injured or other serious air poUution hazards are manifest. 

Rather, Congress also intended for EPA to use the authority to address risks 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, EPA has taken other emergency actions under 

statutes that have similar provisions, such as § 106 of the Comprehensive Environmental 

Response, Compensation and Liability Act (CERCLA) ["when the President determines that there 

may be an imminent and substantial endangerment to the public health or welfare or the 

environment"] and §7003 of the Resource Conservation and Recovery Act (RCRA) ["may 

3 Other statutes include "emergency power" provisions giving appropriate govemment officials the 

right to seek judicial relief, or to take other action to avert imminent and substantial threats to the 

environment or public health. In the case of United States v. Reillv Tar & Chemical Com., 546 F. Supp. 

1100 (D. Mim1. 1982) suit was brought under RCRA Section 7003. The court considered the inuninent 

hazard provisions ofRCRA, Section 504 ofthe CWA, Section 106 ofCERCLA, Section 303 ofthe CAA, 

and the SDW A and noted that the phrase "imminent and substantial endangerment" was intended to be 

treated similarly in each statute. EPA believes it is appropriate to interpret identical terms such as 

" imminent" and "endangem1ent" in a consistent manner. 

4 See In Re: Minerec Mining Chemicals, EPA Docket No. R9-94-34 (Clean Air Act Emergency 

Order, August 26, 1994), and In Re: Minerec Mining Chemicals, EPA Docket No. R9-94-34 (First 

Amended Clean Air Act Emergency Order, September 28, 1994); In Re: Shallow Water Refinerv , EPA 

Docket No. VII-97-CAA-.120 (June 12, 1997); and In Re: Trinity America Comoration, EPA Region IV, 

October 3, 1997. Prior to 1990, EPA used its §303 authority to address high particulate matter in North 

Binningham, Alabama ( 197 1), and to address an asbestos hazard at a mine in Globe, Arizona (1983). 

5 The Amendments also contain a provision sinlilar to §303 under § 112(r)(9), which pertains to 

accidental releases of a regulated substance as defined by § 112(r)(3). The reader is encouraged to read 

EPA· s guidance concerning the use of this section, published by EPA in an April 17. I 99 1 document 

entitled Guidance on Using Order Authority under Section 112(r)(9) of the Clean Air Act, as Amended, 

and on Coordinated Use with Other Order and Enforcement Authorities, and in Fed Reg. Vol. 56, No. 

104, p. 24394, May 30, 199 1. 
3 

present an imminent and substantial endangerment to health or the environment"]. This guidance 

is consistent with the case law and administrative practice under these other authorities, and the 

Amendments of 1990.6 It is also consistent with other published guidelines for taking action 

under EPA's imminent and substantial endangerment authority. 7 

II. LEGAL PREREQUISITES TO INITIATING ACTION UNDER SECTION 303 

The basic prerequisites to initiating action against a party under §303 are that the 

Administrator has received evidence that: (1) a pollution source or combination of sources 

(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 alleged pollution. In addition, §303 requires the Administrator, prior to taking any action, 

to 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. The following discussion includes 

the definitions of key terms, the legislative history and case law, and the resources available to 

assist EPA staff as they address these prerequisites. 

A Evidence Indicates that a Pollution Source or Combination of Sources (Including Moving 

Sources) is Presenting an Imminent and Substantial Endangerment to Public Health or 

Welfare. or the Environment 

1. The meaning of "imminent and substantial endangerment" 

a. "Endangerment" 

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 The legislative history of the 1990 Clean Air Act Amendments indicates that one reason for 

amending §303 was to make it similar to other endangerment authorities. The Senate Report on the 1990 

Amendments states in relevant part: 

These changes are necessary to enable the Administrator to address air pollution 

emergencies in an adequate manner, and to confonn the Administrator's emergency 

authority under the Act to emergency authorities under other envirorunental laws. See, 

TSCA section 208, CERCLA section 106, RCRA section 7003, and CWA section 504. 

Similarly, the deletion of the requirement that the Administrator may not bring suit u11less 

State or local authorities have failed to act conforms the Act to other envirorunental laws. 

[S. Rep. No. 101-228, IOlst Cong., lst Sess. 370 (1989)] 

As discussed herein, key provisions of these authorities are similar. There should be no practical 

differences in the scope of EPA's authority between these similarly-worded 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 would thwart Congress' intent that EPA use §303 to protect the nation's air 

quality. As stated in the House Report on the Clean Air Act Amendments of 1977: 

In retaining the words "imminent and substantial endangerment.. .," the 

committee intends that the authority of this section not be used where the risk of 

harm is completely speculative in nature or where the harm threatened is 

insubstantial. However, ... the committee intends that this language be constructed 

by the courts and the Administrator so as to give paramount importance to the 

objective of protection of the public health. Administrative and judicial 

implementation of this authority must occur early enough to prevent the potential 

hazard from materializing (emphasis added). 8 

The Senate Report on the 1990 Amendments to §303, which expanded the application of 

§303 to public welfare and the environment, expressly states that §303 applies to " threatened" 

harm. The Report says: 

These amendments to section 303 ofthe Act, as well as parellel (sic) 

amendments to section 113, have several purposes. the (sic) amendments broaden 

the Administratror's (sic) authority to issue emergency orders to abate threats to 

welfare and the environment, in addition to the authority to respond to threats to 

"the health of persons." 

Broadening section 301 (sic) to include harm to the environment is 

important to enable EPA to address emergency threats to ecosystems in instances 

where there is no readily demonstrable immediate threat to human health. For 

example, toxic emissions might be blowing downwind from a facility into an 

undeveloped natural area and threatening to impair that area's ecosystem. This 

amendment will allow EPA to order the plant to take necessary steps to eliminate 

the threat to flora and fauna (emphasis added).

9 

Courts have interpreted " endangerment" to include threatened or potential harm under 

§21 1 of the Act (providing EPA the authority to regulate fuels) and other environmental 

statutesw In Ethyl Corporation v. Environmental Protection Agency, 

11 the Court interpreted the 

"endanger" standard under §211 as requiring only a finding that lead emissions presented a 

"significant risk" of injury to the public. In Ethyl, the question was whether EPA was justified in 

8 H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 328 (1977). 

9 S. Rep. No. 101-228, IOist Cong., lst Sess. at 370 (1989). 

10 See discussion ofendangennent in, e.g .• Dague v. City of Burlington, 935 F.2d 1343, 1356 (2d 

Cir. 1991) (RCRA § 7002); United States v. Conservation Chemical Co., 619 F. Supp. 162, 192 (W.O. 

Mo. 1985) (CERCLA § 106). 

11 541 F.2d 1 (D.C. Cir. 1976). 
5 

requiring the reduction of lead in gasoline when there was no finding of the presence of actual 

harm from exposure to airborne lead. The Court said: 

When one is endangered, harm is threatened; no actual injury need ever occur .... A 

statute allowing for regulation in the face of danger is, necessarily, a precautionary 

statute. Regulatory action may be taken before the threatened harm occurs; 

indeed, the very existence of such precautionary legislation would seem to demand 

that regulatory action precede, and, optimally, prevent, the perceived threat 

(emphasis added). 12 

In Reserve Mining Co v. Environmental Protection Agency, 

13 the court similarly 

interpreted the term " endangering" under § 1160(g)(l) of the Federal Water Pollution Control 

Act14 in a case involving asbestos discharges into Lake Superior. The Court stated that "Congress 

used the term 'endangering' in a precautionary or preventive sense, and, therefore, evidence of 

potential harm as well as actual harm comes within the purview of that term. " 15 ln Reserve, relief 

was based on "an acceptable but unproved medical theory" that ingestion of asbestos fibers might 

cause cancer.

16 The Court in Reserve, however, indicated that the term "endangering" under 

§ 1160(g)( 1) connotes a "lesser risk of harm" than the phrase "imminent and substantial 

endangerment." 17 EPA, therefore, should determine that the threatened or potential harm is 

"imminent" and "substantial" before initiating action under §303. 

b. "Imminent" 

EPA believes that an endangerment is "imminent" under §303 where present conditions 

indicate a threat of harm to the public health, welfare or the environment, no matter how distant 

the manifestation of actual harm may be, as well as where conditions indicate an immediate threat 

of harm. As the 1970 Senate Report on §303 states: 

The levels of concentration of air pollution agents or combination of agents 

which substantially endanger health are levels which should never be reached in 

any community. When the prediction can reasonably be made that such elevated 

12 Ethvl, 541 F.2d at 13 (D.C. Cir. 1976). 

13 514 F.2d at 492 (8th Cir. 1975). 

14 The 1972 amendments to the Federal Water Pollution Control Act, known as the Clean Water 

Act, added §504, the present imminent and substantial endangerment standard for water pollution control. 

15 Reserve, 5 14 F2d at 528 (81

h Cir. 1975) .. 

16 ld., at 529. 

17..Jsl, at 528. 
6 

levels could be reached even for a short period of time--that is that they are 

imminent--an emergency action plan should be implemented ... (emphasis added). 18 

Courts have interpreted the term "imminent" under other environmental statutes to include 

situations where present conditions indicate there may be a risk to health or the environment, 

19 

even though the harm may not be realized for years?0 It is not necessary for the endangerment to 

be immediate or tantamount to an "emergency" to be imminent and warrant relief21 The Court in 

Dague v. City of Burlington, for example, found an imminent endangerment in a RCRA case 

involving a municipal landfill that was leaking approximately 10% of its leachate containing low 

levels of lead into an adjacent cattail marsh. Lead in test wells surrounding the landfill was 

generally below the maximum contaminant level for drinking water, and no actual harm was 

shown to the marsh. There was evidence, however, that the leachate from the landfill was toxic 

to freshwater aquatic life, including at least one vertebrate in the food chain, and an expert 

testified that, in a system such as the cattail marsh where there is a high tolerance for toxic 

chemicals, signs of stress may appear only after a latent stage of deterioration?1 The Court 

concluded that there was an imminent 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 must be "imminent. " The actual harm itself may not 

eventuate or be fully manifest for a period of many years, if at all?3 Moreover, even where the 

conditions giving rise to the risk have been present for some time, EPA is not precluded from 

addressing them as an imminent endangerment. 24 Contaminants that lead to chronic health effects, 

as well as acute health effects, may be considered to cause imminent endangerment.25 

18 S. Rep. No. 91-1196, 9Jst Cong., 2d Sess. 36 (1970). 

19 See, g., Dague, 935 F.2d at 1356. 

20 See ~- United States v. Valentine, 856 F. Supp. 621, 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 Industries, 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 CERCLA § 106], however, applies only in emergency situations.") 

22 Dague v. Citv ofBurlington, 732 F. Supp. 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. 1989), interpreting CERCLA §106 

("even when there is an inordinate delay [by EPA]., the court must find an immediate danger to public 

health if in fact one exists"). 

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 itself may not be immediate, and the amount of time for harm from such emissions 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 emissions to result in actual harm to individuals. 

c. "Substantial" 

Courts have found an endangerment to be "substantial" 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 considered substantial. For example, proof 

that a certain number of people will be exposed or that a ce11ain number of deaths will occur is 

not required. 27 A number offactors, such as the quantities of the hazardous substances involved, 

the nature and degree of their hazards, or the potential for human or environmental exposure, may 

be considered in determining whether there is a reasonable cause for concern. In any given case, 

one or two factors may be so predominant as to be determinative of the issue28 For example, the 

Court in United States v. Conservation Chemical Co. found a "substantial" endangerment under 

CERCLA § 106, where numerous hazardous substances from chemical wastes were present and 

being released into the environment from a site, and there was a risk that humans or wildlife might 

venture onto the site and come into contact with the substances. 29 The Court in United States v. 

Vertac Chemical Corporation found the chemical dioxin to be presenting a " reasonable medical 

concern over public health," and thereby to be constituting an imminent and substantial 

endangerment to health under RCRA §7003, where the chemical was widely believed, but not 

fully proven, to be hazardous. 

30 EPA interprets these decisions to mean that an endangerment is 

" substantial" under §303 where there is a reasonable cause for concern for public health. welfare 

or the environment if remedial action is not taken. 

Thus, §303 provides 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 Section 303 should not be 

used where the risk of harm is completely speculative or where the threatened harm is 

26 ee, , Conservation Chemical Co., 619 F. Supp. at 194. 

27 Id. 

28 ld. at 194-195. 

29 ,llL at 195. 

30 489 F. Supp. 870, 885 (E.D. Ark. 1980). 

31 See 59 FR 58958, 58970 (November 15, 1994) discussing the authority to use §303 to address 

situations where health-based, ambient air target or trigger levels are exceeded. 
8 

insubstantial.32 If. however, the Agency can show that the suspect emissions are creating a nonspeculative " reasonable concern" that public health, welfare or the environment is at risk of harm, 

action under §303 is appropriate. 

d. "Is presenting" 

The prefatory language in §303 differs from that ofRCRA §7003 and CERCLA §106. 

While §303 provides that EPA may act when a pollution source or combination of sources "is 

presenting" an imminent and substantial endangerment, RCRA §7003 and CERCLA § 106 

authorize EPA to act when conditions "may present,"or "there may be," respectively, an imminent 

and substantial endangerment. In Dague and other decisions, the phrase "may present" has been 

interpreted as "expansive language" indicating the Congressional intent "to confer upon the courts 

the authority to grant affirmative equitable relief to the extent necessary to eliminate any risk 

posed by toxic wastes''33 Given the legislative history of this provision, as discussed earlier, it 

appears that Congress did not intend to create less protection for the public or the environment 

than under other environmental statutes, and therefore may not have intended any difference in 

meaning from the slight difference in text. At worst, one could argue that the difference in 

language may mean that the emissions that would pose the threat be either ongoing or reasonably 

predicted, as distinct from theoretically potential emissions. EPA does not believe that this 

difference in prefatory language or the judicial interpretation of "may present" undermines the 

application to §303 of established case law interpreting the phrase "imminent and substantial 

endangerment" under other statutes. 

In either event, the " is presenting" requirement is clearly met when there are ongoing 

emissions that endanger public health, welfare, or the environment. The " is presenting" 

requirement can also be satisfied when the source is intermittent. For example, a source might 

operate a process that periodically emits a highly toxic air pollutant. It is not necessary for EPA 

to wait for the emissions to occur before issuing a §303 order to abate the endangerment. An 

endangerment can be present even if it is not o n a continuous basis. 

2. The meaning of"public health or welfare, or the environment" 

As discussed above, the 1990 Amendments expanded the standard under §303 from 

" imminent and substantial endangerment to the health of persons" to '(imminent and substantial 

endangerment to publi c health or welfare, or the environment." The use of the word "or" 

indicates that an endangerment to either public health, welfare, or the environment alone, will 

warrant relief under §303 ~ 

32 See H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 328 (1977). 

33 Dague v. Citx of Burlington, 935 F.2d at 1355 (citing United States v. Price, 688 F.2d 

204, 2 113 (3 rdCir. l982). 

34 Conservation Chemical, 619 F. Supp. at 192. 
9 

The Senate Report on the 1990 Amendments states that broadening §303 to apply to harm 

to the environment "is important to enable EPA to address emergency threats to ecosystems in 

instances where there is no readily demonstrable immediate threat to human health. " 35 The 

Report further 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 absence of 

threatened harm to human health. Additionally, case law under RCRA defines "environment" to 

encompass the air, soil and water, including groundwater. 36 

The Senate Report does not address the expansion of §303 to welfare. The term 

"welfare" is defined in the Act, however. Section 302(h) states: 

All language referring to effects on welfare includes, but is not limited to, effects 

on soils, water, crops, vegetation, manmade materials, animals, wildlife, weather, 

visibility, and climate, damage to and deterioration of property, and hazards to 

transportation, as well as effects on economic values and on personal comfort and 

well-being, whether caused by transformation, conversion or combination with 

other air pollutants. 

This statutory definition of"welfare" is broader than, and encompasses the elements of, 

" environment" as defined above. The court in Conservation Chemical also found under CERCLA 

that "[t]he term 'public welfare' is exceptionally broad, and encompasses ' health and safety, 

recreational, aesthetic, environmental and economic interests."37 The court stated further that 

"[t]he expansive scope of the terms ' public welfare' and 'environment' mandates the conclusion 

that Congress intended injunctive relief to issue whenever any aspect of the nation's interest in a 

clean environment may be endangered imminently and substantially by a release."38 EPA's 

authority under §303 , therefore, may be used to abate imminent and substantial endangerments 

affecting a broad spectrum of concerns. 

B. Any Person Causing or Contributing to the Alleged Pollution 

1. The meaning of"any person" 

Section 303 provides that the Administrator may take action to restrain "any person" 

causing or contributing 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., 1st Sess. 370 (1989). 

36 Lincoln Properties, 23 Envtl. L. Rep. at 20671-72. 

37 Conservation Chemical, 619 F. Supp. at 192. 

38 !.Q.. 
10 

302(e) ofthe Act defines "person" to include "an individual, corporation, partnership, association, 

State, municipality, political subdivision of a State, and any agency, department, or instrumentality 

of the United States and any officer, agent, or employee thereof." Thus, any entity specified in 

§302(e) that is causing or contributing to the alleged pollution may be subject to §303. Such a 

person could include, for example, corporate officers, the individuals who own or operate a 

polluting source, the lease holders or contractors of same, or the corporate entity itself. As 

discussed in the following section, thjs could also include past owners of a facility who caused or 

contributed to a present endangerment. 39 

2. The meaning of"causing or contributing to" the alleged pollution 

Section 303 may apply whenever there is evidence that "a pollution source or combination 

of sources" is presenting an imminent and substantial endangerment, and EPA may bring action to 

restrain "any person causing or contributing to the alleged pollution to stop the emission of air 

pollutants causing or contributing to such pollution" (emphasis added). 

Causation, in the air pollution context, is rooted in common law. In past decisions, the 

courts have recognized that air pollutants can be distributed over a large geographical area and 

pollution it~uries may be the result of cumulative effects of several emissions from different 

sources.40 This can sometimes make it difficult for a plaintiff to prove that a particular defendant 

was the source of the pollution that caused the injury. In a typical common law negligence action, 

the plaintiff must show that it was an action or inaction of the defendant which caused the injury. 

This is causation-in-fact. However, the courts have recognized that it is often difficult to show 

causation-in-fact in ton cases involving toxic agents and have relaxed the requirement that the 

plaintiff must show cause in fact. Courts will usually find a defendant liable if defendant's conduct 

was a substantial factor in causing the alleged endangerment. Plaintiffs are also aided by the 

theory of joint and several liability which has been applied to independent discharges of air 

pollutants where the effects of each plant's pollution was impossible to determjne. 

41 EPA believes 

that the Agency may proceed with a §303 action when the person's conduct is a substantial factor 

in causing the alleged harm. 

EPA may take action against any person who is contributing to the emissions of the air 

pollutants creating an endangerment, regardless of the extent of that person's overall contribution 

to the problem. For example, on November 18, 1971, the District Court for the Northern District 

of Alabama issued a temporary restraining order under §303 curtailing operations at 27 steel39 EPA notes that in practice, §303 orders are usually issued to organizations, not individuals. 

40 Reitze, Arnold, Overview and critique : a century ofair pollution control law: what 's worked: 

what'sfailed; what might work. 21 Envtl. Law 1549 (1991). 

41 Michie v. Great Lakes Steel, 495 F.2d 213 (6th Cir.), cert. denied, 419 U.S. 997 (1974). 
11 

making facilities near Birmingham, AJabama.

42 The average particulate matter levels in the 

preceding 48 hours was found to be 725 micrograms per cubic meter, levels which were 

considered harmful to human health. EPA's complaint did not allege the specific contribution of 

each facility to the overall particulate matter levels. It simply stated that " the Administrator ofthe 

Environmental Protection Agency has received evidence that a combination of pollution sources, 

including the defendant's plants, are presenting an imminent and substantial endangerment to the 

health of persons by discharging particulate matter into the air" [emphasis added]. 

EPA interprets the phrase "contributing to" under §303 to mean, as it was exercised in the 

above-referenced action and as judicially interpreted under RCRA, "to have a share in any act or 

effect."43 It is not necessary for the person to be directly controlling the activities that are creating 

an imminent and substantial endangerment to issue an order or take other action under §303.44 

Nor is it necessary that a person be responsible for a specific share ofthe effect. A combination 

of air pollution sources may present imminent and substantial endangerment even though the 

emissions from a single source, if considered alone, may be of lesser concern. In some cases, it 

may be necessary to address an individual source under §303 even though the action would not 

completely eliminate the pollutant(s) of concern. 

It may also not be necessary for the person to own the polluting source. The United 

States sought an injunction against the owners of a site under CERCLA §106, RCRA §7003 , and 

CAA §303 to address endangerment from asbestos contamination. The defendants owned or 

operated an asbestos mill at the site until 1974. Prior to closing the mill, the owners used 

asbestos-containing mill tailings to grade the property for mobile home plots, and offered the lots 

for sale in 1973. Fifty lots were sold at a site of some 17 acres. The Court found that, under 

§303, the residential subdivision and a second, nearby mill that was still in operation were 

" pollution sources or a combination of sources" and that the past owners of the site "caused or 

are contributing to such pollution." The Court ordered the defendants, who included individuals 

and corporations that formerly owned the subdivided site, to abate the releases and threatened 

releases of asbestos in the area. 45 

Thus, EPA believes that under §303, that the Agency may take action to restrain any 

person(s) whose actions (or inactions) are responsible for creating emissions of air pollutants 

42 United States v. U.S. Steel, No. 71- 104 (N.D.Al, Nov. 18, 1971). Meteorological conditions 

improved on November 19, 1971. and the order was vacated. 

43 United States v. Aceto Agricultural Chemical Com., 872 F.2d 1373, 1384 (8th Cir. 1989). 

Also, see Zands v. Nelson, 779 F. Supp. 1254, 1264 (S.D. Cal. 199 1) (The Court held that a person who 

operated equipment during the time that solid waste leaked from that equipment to be a "contributor"). 

44 Id., at 1383 (The Court held that a person contributed to the handling and disposal of pesticiderelated wastes because that person had (1) contracted with a company that formulates conunercial grade 

pesticides through a process that inherently involves the generation of wastes. and (2) maintained 

ownership of those pesticides throughout the process). 

45 U.S. v. Metate Asbestos Com., 584 F Supp. 1143 (D.C. Az. 1984). 
12 

which are presenting the endangerment. This action may be taken even if such person(s) no 

longer own the pollution source. 

C. The Administrator 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 

Section 303 requires EPA to consult with the State and local authorities before taking any 

action under that section and attempt to confirm the accuracy of the information on which the 

action proposed to be taken is based. The legislative history states that this consultation is 

required "to protect State interests and to prevent duplication of effort."46 

Prior to 1990, one of the prerequisites for taking action under §3 03 was that "the 

appropriate State or local authorities have not acted to abate such sources" (§303, as amended in 

1977 and codified in 42 U.S.C. 7603). In removing this prerequisite from §303, Congress 

removed a requirement that had the potential to delay Federal action.47 However, the present 

consultation requirement should not be viewed as an obstacle to effective action by EPA. It is not 

a concurrence requirement, but rather one of notification and corroboration prior to taking action. 

In consulting with the appropriate State or local authority, EPA should determine whether the 

information upon which EPA intends to act is accurate. In assessing the scope of action to be 

taken under §303, EPA may take into consideration any action taken by State or local authorities. 

However, the existence of state or local action does not bar EPA from proceeding under §303. 

ID. WHEN AND HOW TO APPLY SECTION 303 

A. General Applicability 

Action under §303 is appropriate when there is a reasonable cause for concern that public 

health, welfare, or the environment is endangered. The degree of endangerment or actual harm 

warranting action under §303 is a fact-specific evaluation that may be based on witness 

statements, medical reports, expert opinion, or other evidence. However, in no case is a formal 

risk assessment required. As discussed above, §303 is a precautionary authority, intended to be 

used without delay "upon receipt of evidence" that an endangerment exists. The courts have 

recognized that scientific proof of an endangerment does not always exist and have ruled in favor 

of the Agency when evidence created a sufficient inference of substantial risk or actual harm.

48 

46 S. Rep. No. 101-228, JOist Congress, 1'1 Sess., at 370. 

47 For further discussion on the effect of this pre-1990 provision. see pages 5, 6, and 7 of the EPA 

guidance document entitled Initiation ofAdministrative and Civil Action Under Section 303 of the Clean 

Air Act During Air Pollution Emergencies, September 15, 1983 . 

48 ln United States v. Yertac, 489 F. Supp., 870, (E.D. AR, 1980), the court mled that the public 

was endangered by the release of dioxin, which at the time was considered toxjc under acceptable but 

unproven medical theory. In Valentine, the court ruled that scientific proof of harm was not required, 

rejecting an argument that EPA's failure to perfonn post-mortem analyses on each dead animal found at 
13 

EPA may rely on scientific studies, expert opinion, the conclusions drawn during the 

promulgation of National Ambient Air Quality Standards and other rules, the findings of other 

governmental agencies such as the Agency for Toxic Substances and Disease Registry (ATSDR) 

or state environmental or public health agencies and other credible evidence.49 For example, if 

A TSDR issues a health consultation describing a public health threat posed by a particular facility, 

the issuance ofthat document is sufficient for a §303 action. EPA should also utilize witness 

statements such as affidavits from former or current employees or residents if the pollution source 

is located near a residential area. Statements from credible witnesses that can be corroborated by 

ambient measurements or other information could provide a sufficient basis for the issuance of the 

§303 order. 

Section 303 applies to a broad range of endangerment scenarios. It applies regardless of 

whether a pollutant is regulated, or how it is regulated. 

5

° For example, endangerment from a 

power plant's emissions of sulfur dioxide could be addressed, even if the plant is in compliance 

with its regulatory emissions limits, or a hazardous air pollutant could be addressed, even if there 

are no applicable regulations controlling the emissions. Section 303 can also apply to mixtures of 

pollutants, even if a specific individual pollutant cannot be clearly associated with a potential or 

observed effect. 5

1 For example, emissions of hydrogen sulfide, a gas that does not normally affect 

individuals with asthma, can oxidize into sulfur dioxide which aggravates the disease even at 

relatively low concentrations. Section 303 may also be used in combination with § 114 to require 

information from a source when, for example, the Agency is unable to characterize the type and 

level of pollutants, or engineering information is needed to consider the appropriate injunctive 

relief 

In addition to public health and environmental harm, it should be stressed that the section 

can also be used when there is an endangerment to the public welfare . As discussed above, the 

Act defines welfare broadly. 

Action under §303 may also be taken notwithstanding the length of time an endangerment 

has persisted. For example, action may be taken to address unacceptable emissions from a 

facility, even if that facility has been in operation for decades. A case in point is EPA's 1971 

the site precluded inference as to the cause of death. 

49 EPA discussed the possibility of establishing ambient thresholds that, if exceeded, would clearly 

trigger the ability to use §303 authority. See, e.g., 59 FR 58958 (November 1994), 60 FR 12492 (March 

7, 1995), and 62 FR 210 (January 2, 1997). This would merely establish clearly-recognized thresholds, 

and would not preclude the use of §303 for lower ambient pollutant levels. 

50 An administrative order or civil action may be taken "notwithstandjng any other provision" of 

the Act. CAA Section 303. 

51 Section 303 applies to emissions of"air pollutants," which is defined in §302 as " ... any air 

pollution agent or combination of such agents ... [including]. .. any precursors to the formation 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 provided a reasonable cause for concern and allowed 

EPA to initiate the action. Conversely, EPA may also take action after harm has occurred to 

prevent a future recurrence. For example, EPA's action against Minerec Mining Company 

occurred after releases of hydrogen 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 spectrum of 

non-speculative adverse impacts, or diverse combinations of impacts, of air pollution. EPA may 

consider one or more of the following general factors (this list is not exhaustive): 

o Toxicity and concentration of pollutant(s). 

o Effects of mixtures of pollutants. 

o Exposure pathway. 

o Population sensitivity. 

o Potential for acute exposure. 

o Potential for chronic exposure. 

o Prevailing meteorological conditions and effect on potential exposure. 

o Likelihood of endangerment, even if effects are not observed. 

o Bioaccumulation of pollutant. 

o Visual signs of stress on vegetation. 

o Sensitivity of birds, fish, and wildlife to pollutant. 

o Effects on the public welfare, such as visibility impairment, crop damage, accumulation of 

toxic metals in soil, loss of fishery resource from a toxic pollutant, deterioration of 

property values, corrosion of structures, etc .. 

Examples of imminent and substantial endangerments under §303 could include, but are 

not limited to: 

o A carcinogenic air pollutant from an industrial facility is found at concentrations of 

concern for chronic human exposure. 

o Sulfur dioxide emissions from a source or combination of sources that could, under certain 

meteorological conditions common to the area, aggravate asthma in sensitive populations. 

o A toxic metal is emitted to the air, threatening the flora and fauna of a nearby natural area. 

o Pollution from a source results in damage to and deterioration of property. 

o Insecticide spray often drifts into a nearby residential area. 

o A facility that is exempt from state implementation plan requirements emits high 

concentrations of particulate matter. 

o Pollution from a "grand-fathered" oil refinery adversely affects down-wind residential 

areas. 

Other authorities under the Act could also be applied in the above situations. The 

decision to use §303 should be based primarily on whether such other authorities will address an 
15 

imminent and substantial endangerment in a timely manner. 

52 Section 303 may also 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 Plan would take too 

long to address an endangerment, or emissions ofHAPs present an endangerment even though the 

facility is in compliance with emissions requirements. Section 303 may also be appropriate when 

there are no regulatory requirements that are currently applicable to a particular source. The 

following discussion addresses some of these considerations. 

B. Criteria Air Pollutants 

Section l 09 of the Clean Air Act directs EPA to promulgate regulations setting National 

Ambient Air Quality Standards (NAAQS) for six criteria air pollutants. These standards are 

intended to protect public health (the primary standards], and public welfare [the secondary 

standards]. EPA periodically reviews the effects of criteria air pollutants and may from time to 

time promulgate revised standards. Such revisions undergo notice and comment rulemaking. The 

final Federal Register notice is EPA's formal position on the effects of the relevant criteria 

pollutant. In addition to the notice, there may be information in the rulemaking docket which may 

be relevant to a specific situation. 

In addition, Subpart H and Appendix L of the State Implementation Plan regulations at 40 

CFR Part 51 outline a phased emissions reduction program for air pollution "emergencies" 

involving criteria pollutants and the health of persons. This "emergency episodes program" was 

designed to supplement the NAAQS by providing additional protection in situations not 

effectively addressed by them. The episode criteria and associated abatement actions are 

preventative measures designed to ensure that certain pollution concentrations -- "significant harm 

levels" -- never occur. Specific action levels are prescribed for sulfur dioxide, particulate matter, 

carbon monoxide, ozone, and nitrogen dioxide. In increasing degrees of seriousness, the levels 

are " alert," "warning," and "emergency." The "warning" and "alert" levels are designed to 

ameliorate situations before the emergency state by application of moderate controls. The 

emergency levels 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 

clearly construed to present an imminent and substantial risk to public health, abatement measures 

may be required at lower levels to prevent air quality from deteriorating further, or to avoid less 

serious health effects that can occur at those levels. Moreover, the emergency episodes program 

might not provide an effective response for sensitive populations, such as children, the elderly, or 

52 The House Report on § l 08(k) of the Air Quality Act of 1967, the predecessor of §303, states 

that the provision "is not intended as a substitute procedure for chronic or generally recurring pollution 

problems, which should be dealt with under the other provisions of the act. " H.R. Rep. No. 728, 90111 

Cong., pt Sess. 11 9 ( 1967). In Reilly Tar & Chemical, the court noted that while Congress did not intent 

for EPA to use emergency powers authorities as a substitute for other statutory authorities, the "broad 

range of response authorities provided by Congress .... suggests that it intended to provide EPA 

flexibility ... " i11 choosing the appropriate statutory response. 
16 

people with asthma. 

53 Also, these levels are not intended to protect public welfare or the 

environment. Flexibility is essential and appropriate action should be taken pursuant to §303 

whenever necessary to prevent the significant harm levels from being reached. 

C. Hazardous Air Pollutants 

Section 112 of the Act requires EPA to establish regulatory standards for emissions from 

stationary sources that emit one or more ofthe hazardous air pollutants (HAPs) listed in the Act. 

The EPA Office of Air Quality P lanning and Standards (OAQPS) promulgates technology-based 

(as opposed to risk-based) "maximum achievable control technology" (MACT) standards and 

"generally available control technology" (GACT) standards governing HAPs under § 112( d). In 

addition, Congress provided for a means of future oversight to ensure that the desired protection 

from hazardous air pollutants was indeed occurring. Under § 112 (f), Congress required EPA to 

promulgate more stringent risk-based standards within 8 years after promulgation ofMACT 

standards if promulgation of such standards is necessary to provide an ample margin of safety to 

protect public health, or to prevent an adverse environmental effect. 

OAQPS develops methodologies and procedures for determining residual risks to health 

and the environment. However, since this process might not lead to additional risk-based 

standards until 8 years after promulgation of a MACT standard, an imminent and substantial 

endangerment could arise even if a facility was in compliance with the current MACT or GACT 

standards. Section 303 would be an appropriate authority for addressing such risks. 

In addition to the MACT standards, there are also efforts to address HAPs for specific 

objectives, such as the Urban Area Source Program and the Great Waters Program. As of this 

writing, there is a comprehensive effort underway to assess the risks posed by HAPs to urban 

populations. OAQPS should be consulted about the risk posed by HAPs and to determine the 

status ofMACT, GACT, or risk-based standards before a §303 action is undertaken. 

It should be noted that the criteria pollutants and HAPs listed in the Act or EPA 

regulations are not the only air pollutants for which action under §303 may be appropriate. As 

noted above, §302 defines " air pollutant" broadly. For example, a chemical that is used as a 

pesticide may also be an air pollutant, and a circumstance could arise where the pollutant presents 

an imminent and substantial endangerment. There may also be chemicals emanating from 

industrial or other sources that are not listed under § 112 which pose a cause for concern. 

Under Congressional mandate, ATSDR produces Toxicological Profiles for a large 

number of pollutants, including HAPs. Draft profiles undergo public comment and review before 

final profiles are issued. The profiles typically include a comprehensive analysis of the health 

effects from inhalation, oral intake, and dermal exposure; the mechanisms of action; interactions 

with other chemicals; identity of susceptible populations; adequacy of the data, and other 

53 On January 2. 1997. EPA published a proposed " intervention level program" under the authority 

of §303 to address high 5-minute sulfur dioxide peak levels in certain areas of the country. The intent is to 

provide protection in addition to the ambient standards for asthmatic individuals [62 FR 210 - 222). 
17 

information that may be pertinent to action under §303 . Toxicological profiles are available from 

the National Technical Information Service (contact: 800-552-6847). 

The Occupational Safety Health Administration (OSHA) establishes standards for 

exposure to air pollutants inside the workplace. Although not directly related to ambient air, 

these standards 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 through the EPA Headquarters or regional office libraries. 

IV. RELIEF AVAILABLE UNDER SECTION 303 

Section 303 authorizes EPA to "bring suit in the appropriate district court" to seek certain 

relief It also authorizes the Agency to issue administrative orders in the event that " it is not 

practicable to assure prompt protection ... by commencement of such civil action ... . " lfthe 

circumstances at a site require immediate action, an administrative order can be issued as soon as 

EPA has evidence satisfying the statutory criteria. However, under §303, these orders "remain in 

effect for a period of not more than 60 days" unless EPA brings suit in district court prior to the 

expiration of an administrative order, after which time the order remains in effect for an additional 

14 days or longer as may be authorized by the court. EPA coordinates closely with the U.S. 

Department of Justice 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 policy for the inclusion of §303 authority, that is, protection of the 

public or the environment before any harm can occur. EPA presumes that, in reviewing a decision 

to act, the courts will consider whether the agency acted rationally given the facts available to it, 

and that the action was proportional to the endangerment 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 less acute or is not likely to 

occur until some certain future time. 

While EPA and other authorities are mindful of the potential adverse economic and other 

impacts of a §303 order, the nature of this provision is such that where public health is at stake, it 

may not be appropriate to delay issuance of an order while definitive information is developed on 

such matters, or to wait until the cause, source, and extent ofthe risk is fully understood. Rather, 

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 and a permanent solution arises. 

A. Judicial Action 

1. Referral of a judicial action to the Department of Justice 

Any judicial action under §303 would be brought by the United States Department of 

Justice (DOJ) and requires referral of the action to DOl. The form and length of a judicial referral 
18 

often vary depending upon the need for expeditious intervention by the district court. For 

example, a ((letter referral" that sets forth the critical information in a concise manner may be 

appropriate in emergency situations. EPA should also seek DOJ involvement during the 

information gathering and investigative process. DOJ's involvement prior to formal referral 

should facilitate the use of"letter referral" process or accommodate abbreviated judicial referrals. 

Once an action is filed in district court, DOJ will take the lead in litigating the case in 

accordance with EPA policies and the EPA/DOJ Memorandum ofUnderstanding, and in 

coordination with appropriate EPA participants. 

As previously stated, administrative orders issued pursuant to §303 have a maximum 60-

or 74-day duration dependent upon whether EPA is seeking subsequent judicial action. If EPA 

and DOJ are unable to seekjudicial reliefupon immediate conclusion of the statutory time frame, 

EPA should obtain a tolling agreement or other similar written document from the pollution 

source to toll the 60 day clock. The written agreement should also include a notification 

provision requiring the source to notify EPA of any operational changes. For example, if a §303 

order curtails operations at a manufacturing facility, EPA should obtain a tolling agreement 

extending the duration of the order and requesting that the pollution source provide notice to 

EPA if it intends to resume fu ll production. 

2. Judicial relief available 

Section 303 authorizes the courts to issue injunctions restraining activities that may 

present an imminent and substantial endangerment or to take any action " as may be necessary." 

This implies that the judicial relief requested should be limited to that which is necessary to 

address the endangerment. While exercising its discretion to issue an injunction, a court may 

order either a specific action or a restraint from acting. In addition, it may use its discretion to 

order all or part of the relief requested or to order other relief that it deems appropriate. The 

means by which a court will order specific actions or restraints on action may include temporary 

restraining orders, preliminary injunctions, and permanent injunctions. A temporary restraining 

order is an order issued by a judge that prohibits specified activity or otherwise maintains the 

status quo until the court can hold a hearing on the issue. A preliminary injunction is a judicial 

order requiring a person to take or refrain from a specified action until the court can hold a trial 

on the issue. A permanent injunction is a final judicial order, which is reached after a trial on the 

merits, that requires a person to take or refrain from a specified action. 

B. Administrative Orders 

Section 303 confers upon EPA the authority to issue orders administratively without the 

need for civil judicial action. These administrative orders may not be subject to pre-enforcement 

judicial review. 

54 An order can include any action as may be necessary to protect public health, 

welfare, or the environment. For example, an order may require specific tasks such as installing 

54 See Clean Air Act Amendments of 1990, Chafee-Baucus Statement of Senate Managers. 

reprinted in Cong. Rec. 516953, October 27, 1990. 
19 

pollution control equipment, reducing production, modifying or shutting down process operations 

causing the pollution, or closing the facility. When the conditions at the site are not sufficiently 

defined to allow a concise description of the action required, an order may require the source to 

immediately abate the emissions and undertake any analysis and follow-up action that may be 

required to ensure that endangerment will not recur. 5

5 An order may also require the 

respondent(s) to meet emissions performance standards or limits, rather than dictating the specific 

remediation to be performed. Other actions may also be ordered as necessary. Administrative 

orders issued under §303 are enforceable by the Administrator under the § 113 provisions for 

administrative, civil judicial, and criminal penalties. 

1. Record and content of administrative orders 

EPA will establish an administrative record during the investigative phase to support the 

issuance of a §303 order. In exigent circumstances this record need not be extensive, but should 

be sufficient for a reviewing body to discern the reason for the action taken. Where time is of the 

essence, it may be appropriate to draft a short memorandum at the time of the action and follow 

that memorandum with a more detailed statement as time permits. The record should contain all 

of the evidence EPA relied on in determining whether there is an imminent and substantial 

endangerment, including (but not limited to) eye witness accounts, medical repo11s, scientific 

findings concerning exposure effects, and other evidence as described above. 

An Administrative Order under §303 should include the following elements. 

• A statement of jurisdiction -- This statement should set forth EPA's authority under §303 

to issue the order and cite the delegation ofthis authority to the Agency official signing 

the order. 

• Findings of fact -- These should include the facts that demonstrate that the legal 

requirements for issuing a §303 order have been met and that the actions ordered are 

necessary to protect public health, welfare, or the environment. 

• Conclusions of law-- This section will include conclusions that the legal requirements for 

a §303 order have been met. In orders issued to more than one person, the order may 

include a statement that each respondent is required to carry out each obligation of the 

order and that failure of one or more respondents to comply does not affect the obligation 

of the other(s) to perform. 

• Order -- The order should identify the actions to be performed and when they are to be 

completed. 

55 See Trinity America Corporation, d/b/a Trinity Foam of Carolina. and Trinity Fibers of 

Carolina, Inc .. Order Pursuant to Sections 114 and 303 ojthe Clean Air Act, EPA Region IV, October 3, 

1997. 
20 

• Enforcement -- The order should identify the potential sanctions for non-compliance. This 

is not required but may encourage the respondent(s) to comply. 

2. Standard and scope of review of administrative orders 

As discussed above, EPA believes that administrative orders are not subject to preenforcement judicial review. However, if review is granted in the context of an enforcement 

action, courts will overturn an agency order if it is deemed "arbitrary and capricious." The 

arbitrary and capricious standard gives administrative agencies broad discretion in deciding how 

to administer the law. 

In addition, courts will generally examine whether proper procedures were followed, and 

will also consider due process concerns. Due process does not necessarily mandate an evidentiary 

hearing prior to issuance or enforcement of the order. Rather, the requirement is flexible and 

requires 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 much 

process is enough, EPA should provide the respondent an opportunity to comment on the order, 

and to confer with the Agency regarding compliance with the order, unless there is reasonable 

cause for concern that procedural delays could result in harm. 

56 Mathews v. Eldridge, 424 U.S. 319, 333 (1976); United States v. Seymour Recycling Corp., 

679 F. Supp. 859, 864 (S.D. Ind. 1987) (citation omitted).