Walking Through a Case
I. Seeking compliance: full implementation of environmental reqs
II. Developing a Case
A. Information gathering
1. Authority / restrictions. Sources of information:
a. Discharger / permittee / industry
i. Voluntary submission
ii. Permit application
iii. Self-monitoring reports/audits
1) General benefits: shifts burden, responsibility and cost to industry.
2) Drawbacks: relying on integrity of recording and monitoring that industry is doing
a) Example: Seven companies that make up diesel industry installed “defeat devices,” software pgrms. These devices turned off programs when running under highway conditions so a lot more pollution was coming out (NO2 was triple what it was supposed to be). These devices were supposed to increase fuel efficiency. Govt settled for $83 million fine, and $1 billion investing for cleaner engines.
3) EPA self-audit policy
a) Conditions
i) Systematic discovery through audit / compliance management system. Want companies to put companies to discover violations on own. (p. 310)
ii) Voluntary discovery. reward companies for finding what they don’t have to find
iii) Prompt disclosure. Let EPA know w/in 21 days
iv) Discovery independent of govt / 3d party
v) Correction / remediation w/ 60 days
vi) Prevent recurrence
vii) Not a repeat violation
viii) No serious actual harm or Imminent Substantial Endangerment
ix) Cooperation
b) Benefits of audit policy
i) Promise to reduce gravity-component 100% if all satisfied, and 75% if 2-9.
ii) Econ component not satisfied by this policy
iii) No recommendation to criminal proceedings. (EPA will not request report)
c) Distinguish b/w: don’t exist, just ideas
i) Audit privilege: if facility reports on own to discover violations, no evidentiary use of report and not discoverable.
ii) Audit immunity: any violation that are subj. of audit report can’t be subject of lawsuit (prevent both civil suit by govt and citizen’s suit)
b. Government inspections through entry, subpoenas, or info requests
i. 5 USC §555 (FOIA): government, before it can gather info through inspection or demand, govt must have specific legal authority to do so. No inherent authority of EPA and agency to just go out and get into, must be in statute that’s specific to authority being exercised.
1) If compelled to submit data, has right to procure transcript of evidence.
2) FOIA Tips (citizen suit tool)
a) make proper request to proper agency
b) describe record clearly
c) describe age or time period of records sought
d) specific desired format in your request
e) reasonable extent, scope, duration, and search intensity will vary.
f) challenged agency should give specific affidavit re: search methods & processes
g) processing often takes a while
3) FOIA exemptions (5 USC 552(b))
a) Trade secrets and confidential commercial/financial info
ii. Statutes that grant specific legal authority:
1) RCRA
a) RCRA § 3007(a) (42 USC 6927(a)). Grants power to EPA to gather info.
i) Info requests can be made of persons who generates, treats, transports, disposes of, or handles waste.
ii) Purposes to gather info can be quite broad, such as developing info.
iii) EPA can enter facility, inspect, and obtain samples. If does take sample, must give receipt and portion of sample.
b) RCRA § 3008(b)
i) If EPA uses admin order, company can request public hearing. In connection w/ hearing, EPA may issue subpoenas for attendance and testimony of witnesses.
ii) EPA has a one-way right to discovery in administrative hearings.
c) RCRA § 3013 (42 USC 6934(a))
i) If facility has hazardous waste, EPA can order owner/operator to test/monitor, etc.
ii) If owner can’t do it, then EPA can order previous owner to do it. If neither can do it, then EPA can do it itself.
2) CERCLA – superfund statute which provides for cleanup of hazardous waste sites
a) CERCLA § 104(e) (functional equivalent of warrant): EPA can get ct. or admin order to allow access when doing superfund cleanup when doing superfund cleanup.
i) Then, govt can sue responsible parties to pay for cleanup, or govt can order responsible parties to clean up themselves
b) § 104(e)(2): provides info gathering authority (p. 281-82)
i) Not limited to PRPs (potentially responsible parties), but anyone who has info can be subject to request
ii) And info can be quite broad, anything re: w/ hazardous substance at facility
c) Pres. can issue admin order directing compliance, or he can ask AG to commence civil action
d) Ct. may assess civil penalty not to exceed $25K/day for each day of non compliance
e) Provides one-way discovery even though ongoing lawsuit.
i) Probably less likely to be admissible in ct., rather than deposition
iii. Government entry
1) Q1: is there reasonable expectation of privacy?
a) GOVERNING RULE: for OSHA search, EPA must obtain warrant, but probable cause isn’t same as regular crim cases (only need to specify facility and give neutral reason)
i) Purpose of warrant:
(1) Limit time/place/manner to place limits on what govt can do
(2) Informs object of search that these are limits and of their rights.
ii) Rationale:
(1) Can’t pick on biz just b/c you don’t like them.
(2) Presumably, in order to get warrant, EPA will spell things out to limit search for benefit of regulatory entity
(3) Most warrants are issued ex parte anyway, so can still have surprise warrant
iii) Exceptions:
(1) Permit: might specify that EPA can come in at any time to inspect.
(2) Consent: facility lets govt in, wants good r’ship.
(3) Pervasively regulated biz (V-1):
(a) substantial govt interest
(b) warrantless entry necessary to further regulatory scheme
(c) statutory scheme must adequately substitute for warrant
(4) Emergency
iv) Marshall v. Barlow’s. Inspector wants to inspect facility, manager says no, asks if there’s reason, inspector says no reason, manager says no, OSHA goes to ct and gets order, and manager gets injunction. Don’t need probable cause in crim sense, just need regular inspection plan.
(1) Dissent: reasonableness standard – if reasonable, don’t need warrant. (e.g., complying w/ health/safety laws)
2) Q2: Is this open fields or protected curtilage?
a) EPA’s aerial observation of P’s plant complex did not exceed statutory investigatory authority, AND EPA’s aerial photos of P’s plan complex w/o warrant was not search under 4AM. Dow.
i) Rationale: relies heavily on open fields doctrine
b) EPA inspectors, w/o warrant or consent, enter property of wire mill facility and take wastewater samples fr
(4) buyer holds itself out as continuation
ii) Rationale for rejection:
(1) State / fed CL has is no theory of liability based on substantial continuation (carry over chunks of biz), only mere continuation (just change name).
(2) Ct. shows preference for state CL, consistent w/ Best Foods, where although Congress intended to create wide net of liability, but ct. doesn’t go that far and see if corporate veil should be pierced.
iii) Atchinson v. Brown
(1) Facts: Puregro bought Brown’s assets, had consultant agreement w/ Brown, hired 60% of Brown’s employees, continued operations, probably took over customer base, used phone number – publicity.
(2) Held: both “substantial continuation” and “fraudulently-entered transaction” exception failed
b) “Fraudulently-entered transaction” exception (Atchinson v. Brown)
i) Rule: asset purchaser may be liable under CERCLA if transaction was fraudulently entered into to escape liability
ii) Look for:
(1) whether seller had insufficient assets to cover liability even before sale
(2) whether buyer paid appraised value for each item
iii) Fair?
(1) Unfair: Buyer took advantage of seller being under duress.
(2) Fair: seller can contribute more to cleanup after buyer purchased, and want to encourage buyer to buy
ii. Injunction
1) Definition: court order commanding or preventing an action
2) CL test for granting injunctions:
i) Legal remedies are inadequate (i.e., money damages inadequate)
ii) Balance of equities in that that your harm is outweighed by other harm (irreparable harm)
3) Types:
a) Enforcement injunction: injunction that enforces statute
i) TVA v. Hill. TVA builds dam that is believed to destroy last remaining habitat of snail darter. Dist. Ct. found violation of ESA if TVA were allowed to complete dam, so question comes down to remedy. Held: NO CL balancing test. SCOTUS finds that injunction is mandatory based on statute’s text and Congress’s intent that endangered species be protected at all costs.
b) Compliance injunction: injunction requiring facility to acquire permit
i) Weinburger. Navy does air bombing training, and when bombings miss, they land in water. Argument is that the bombings violate CWA. Held: CL balancing case. Ct. ordered navy to obtain permit but did not grant injunction.
(1) Compare CWA to ESA: CWA has qualified duty v. ESA’s absolute duty
(2) Statutory interpretation: judges were selective, could’ve made same args
(3) Policy:
(a) Nat’l security v. harm of environment.
(b) Bombings aren’t typical pollutants, can’t figure out how it’s that bad for environment, so nat’l security wins.
(c) Congress allowing permits under CWA but not ESA makes CWA duties seem more qualified.
