Clean Air Act § 303 Coming into the Limelight 

Part 1: Legislative History and a Recounting of § 303 Uses

By Johanna Adashek

The Clean Air Act contains what can be considered an “Emergency Provision” or a “Substantial Endangerment Provision” that provides EPA with the authority to unilaterally issue orders to polluters substantially endangering the public health, welfare, or the environment. This broad and versatile power, while not frequently used, has demonstrated the potential to combat ongoing or imminent hazards from further harming the public or the environment. This post will review the legislative history of § 303 beginning with the emergency provision in the Air Quality Act of 1967 to the Clean Air Act of 1970 and two subsequent Clean Air Act amendments. After detailing how Congress has strengthened the emergency provision in Clean Air Act § 303, this post will then recount EPA’s use of § 303 over the past half century.

Through previous Clean Air Act iterations and amendments, at every occasion, Congress demonstrated its support for a strong emergency power within the Clean Air Act. In the 1963 Clean Air Act, Congress delegated authority to the Secretary of Health, Education, and Welfare (HEW) (this was prior to the establishment of the Environmental Protection Agency) to seek injunctive relief through the courts “to secure abatement of the pollution.” The Air Quality Act of 1967 § 108(k) provided similar authority to EPA, and when compared with the Clean Air Act of 1970, contained nearly the same language except for a few changes in terminology, as can be seen with the bolded changes below:

The passage of the Clean Air Act in 1970 bore the first iteration of the § 303 Emergency Powers. However, little change occurred between the two statutes except notably the addition of the “causing or contributing” language pertaining to who may be the focus of legal action as a result of air pollution. The 1977 amendment to the Clean Air Act brought more changes, both broadening and strengthening the reach of § 303.

The 1977 amendments allocated further tools to the EPA under § 303 by allowing for the utilization of administrative orders that the EPA can issue unilaterally, without judicial intervention or approval, during situations when it is not practicable to assure the prompt protection to the health of persons using a civil action. The Administrative order would last only 24 hours, with a possible extension to 48 hours (or longer if authorized by the court) if the Administrator were also to initiate a civil action. At the same time, Congress added both a requirement for EPA to consult with state and local authorities (but only to confirm the correctness of the information) as well as a maximum penalty. 

The 1990 amendments to the Clean Air Act further strengthened the reach of § 303 and lessened some procedural requirements for consultation that had been added in previous iterations. 

The result of the 1990 amendments, leaving the Clean Air Act in its current form, expanded the endangered parties, loosened requirements on the consultation requirement, and lengthened the duration of EPA’s administrative orders. As compared to the previous iteration where EPA could only act upon the endangerment to “the health of persons,” the 1990 amendment expanded the scope of endangerment to “the public health or welfare, or the environment.” The 1990 amendment further lessened the consultation requirement. The 1970 Clean Air Act required a finding that state and local authorities had not acted to abate the pollution, thereby requiring inaction before the federal government could take action. The 1977 amendment kept the inaction language and added additionally, “the Administrator shall consult with the State and local authorities in order to confirm the correctness of the information on which the action proposed to be taken is based and to ascertain the action which such authorities are, or will be, taking.” The 1990 amendment removed the inaction requirement and amended the additionally-added language from “in order to confirm the correctness” to “attempt to confirm the accuracy of the information on which the action proposed to be taken is based.” Now, the EPA need merely to attempt to confirm the correctness of the information. The change, while subtle, removes barriers to action allowing the EPA more freedom to act to protect the public and environment. Lastly, Congress’s 1990 amendments lengthened the period of effectiveness of § 303 administrative orders from 24 hours to 60 days. Both iterations allowed for an immediate extension (and discretionary extension by the courts) that the 1990 amendments lengthened from 48 hours to 14 days. These changes, over multiple Clean Air Act amendments, demonstrate Congress’ intention for EPA to have a broad and powerful tool for addressing emergency air pollution situations.

While not used excessively, EPA’s use of § 303 has been consistent and strategic, only in cases requiring immediate abatement of pollution. Below I am listing the accounts of § 303 that I could find:

1. 1971 – U.S. Steel: EPA obtained a temporary restraining order from a federal district court against 23 industrial stationary sources in Birmingham Alabama in order to curtail particulate matter levels.
   • See Doug Rendleman, Legal Anatomy of an Air Pollution Emergency, 2 B.C. Env’t Aff. L. Rev. 90, 95-96 (1972).
   • One study of residents’ lung function showed 30% with measurable deterioration. Id. at 96-97.
   • See also George E. Hardy, Jr., et. al., First Use of the Federal Clean Air Act’s Emergency Authority: A Local Analysis, 64 Am. J. Pub. Health 72, 74 (1974).
2. 1980: § 303 order in combination with RCRA action dealing with the storage of hazardous chemicals.
3. 1980: § 303 order in combination with RCRA action dealing with the storage of pesticides and related chemicals.
4. 1983: Addressing an asbestos hazard at a mine in Globe, Arizona.
5. 1994 – Minerec Mining Company: order requiring the Minerec Mining chemical manufacturing plant located in the Tohono O’odham Nation in Arizona to initially shutdown manufacturing and subsequently continue with limited production and monitoring devices based on the risk of uncontrolled releases of hazardous substances.
   • See also FY 1994 Enforcement and Compliance Assurance Accomplishments Report Draft at 135.
   • See also EPA’s 1999 Guidance Document: “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.”
   • See also OECA Cookbook on Imminent and Substantial Endangerment at 66: “While the local air district has attempted to decrease the level of contamination in the atmosphere, the threat of further discharges from the facility remains . . . Shutdown manufacturing operations; no new manufacturing operations may begin; report by telephone each day (including weekends) on the status of shutdown efforts.”
6. 1997 – Shallow Water Refinery: After finding evidence of both airborne asbestos emissions and friable asbestos on the ground, as well as children playing in and with the asbestos, EPA ordered Shallow Water Refinery to “Cease all activities at the refinery; keep all minor children outside the property; restrict access to the refinery; cease all disposal and removal of property from the site; provide records to EPA of all names and addresses of facilities where metals have been salvaged; provide AHERA certified plan to bring facility into compliance.”
   • See also OECA Cookbook on Imminent and Substantial Endangerment at 66.
7. 1997 – Trinity American Corporation: EPA ordered the shutdown of foam and fiber pad manufacturing operations after residents experienced severe headaches, chest pain, and dizziness. If Trinity wanted to resume operations they would need to submit a resident safety plan to EPA for approval.
   • See also OECA Cookbook on Imminent and Substantial Endangerment at 66.
8. 2007 – PennTex: EPA brought a civil suit against PennTex, an oil production company, for suspected pollution of hydrogen sulfide.
   • In explanation of the suspected pollution, the consent decree between the U.S. and PennTex explains: “EPA believes that oil production from the Lawrence Wellfield may be a significant source of hydrogen sulfide emissions, but that there may be other sources of hydrogen sulfide emissions contributing to ambient levels in Bridgeport and Petrolia outside the control of PennTex and Rex Energy.” (emphasis added).
9. 2008 – G-I Holdings: EPA brought a civil action requesting the court restrict access to G-I Holdings’ asbestos mine and milling site after evidence of hikers, bikers, and ATVs had entered the site and disturbed the asbestos causing more to be airborne. Additional requirements included application of security measures; dust suppression; monitoring the air quality; investigating and documenting the locations of any asbestos-containing material that had been transported; and planning for the abatement of dangerous off-site materials. G-I Holdings Inc., et al., No 01-30135-RG Doc. 8479 (U.S. Bankruptcy Court D. NJ Nov. 5, 2008). 
10. 2011 – City of Detroit, Detroit Water and Sewerage Department: EPA issued an order requiring the City of Detroit to control hydrogen sulfide emissions and implement control technology. EPA Region 5, Administrative Consent Order in the matter of City of Detroit, Detroit Water and Sewerage Department, EPA-5-11-113(a)-MI-01 (2011).
11. 2014 – RBF Frozen Desserts: EPA issued an order requiring RBF to remove approximately 2000 pounds of anhydrous ammonia from their freezer system and make necessary repairs to comply with generally accepted good engineering practices. EPA Region 1, Emergency Order in the matter of RBF Frozen Desserts LLC (2014).
12. 2017 – SH Bell: After a monitoring station detected the largest amount of manganese concentrations in the ambient air up to that point in the U.S., EPA initiated a civil suit dealing with the excessive emissions.
    • See also the SH Bell Consent Decree.
13. 2019 – Total Petroleum: EPA inspectors witnessed emissions from Total Petroleum’s petroleum storage tanks in Puerto Rico including volatile organic compounds and hazardous air pollutants. EPA ordered Total Petroleum to cease adding to the tanks and repair the problematic tanks. EPA Region 2, Emergency Order in the matter of Total Petroleum Puerto Rico Corp. (2019). 
14. 2021 – New Indy: Initially, EPA issued a § 303 administrative order regarding hydrogen sulfide emissions at the New-Indy Containerboard Pulp and Paper Mill in Catawba in South Carolina. EPA and DOJ later initiated an action in federal district court, automatically extending the length of the 60-day order for another 14 days, and requested additional time from the court. Upon the terms of the consent decree, New Indy owed a civil penalty of $1.1 million dollars.
15. 2021 – Limetree Bay: EPA ordered Limetree Bay’s refinery in S. Croix to cease operations after flare failures resulting in emissions of hydrogen sulfide, sulfur dioxide, particulate matter, light hydrocarbons, and heavy organic compounds. The flare failure spewed oil droplets, which rained down on the local community.
16. 2023 – Denka: Addressing the pollution problem in St. John the Baptist Parish, Louisiana, often referred to as “Cancer Alley,” EPA issued an order to Denka, the only producer of neoprene in the U.S., over their emissions of chloroprene: a likely human carcinogen, a mutagenic, and a listed hazardous air pollutant under § 112 of the Clean Air Act. Denka has recently challenged the § 303 order, which may set the stage for the first time that a higher court has the chance to rule on § 303.