Section 1: No person may engage in activities or practices that harm indoor air quality.

Section 2: Whenever the Administrator of the Environmental Protection Agency determines that a person has violated or is in violation of Section 1, the Administrator may issue an order assessing a civil penalty for the violation, and may require immediate compliance with the Act, or compliance within a specified period of time.
 

A.  Assume that in several adjudications between 1987 and 1996, EPA consistently held that gas space heaters do not "harm indoor air quality."

B.   Several schools in the city of Sabbath heat their classrooms by using gas space heaters. The schools do not have any ventilation system in place to remove carbon monoxide emissions, but the teachers in the schools open the windows slightly when the heaters are in use. In December of last year, several parents whose children attend a school in the City of Sabbath complained to the Sabbath School Board about unusually high rates of nausea and dizziness among the students and faculty at the school. The parents asked the School Board to replace the gas space heaters at the school or provide more ventilation for the classrooms that contained the heaters, and the Board refused.

C.   In response to the Board's inaction, the parents filed a complaint with the EPA, alleging that the School Board was violating the Indoor Air Quality Act.

D.   EPA conducted an inspection and issued the following two sentence order:

"Operation of gas space heaters in a school without proper ventilation harms air quality in violation of the Indoor Air Quality Act. The Sabbath School Board is hereby ordered to pay a civil penalty of $10,000, and to remove the space heaters or provide proper ventilation for the space heaters. "

The facts are the same as the last hypothetical, except that EPA's order provided:

"Operation of gas space heaters in a school without proper ventilation harms air quality in violation of the Indoor Air Quality Act. Although EPA has previously held that gas space heaters do not harm indoor air quality, a new Administrator of EPA has been appointed since those decisions, and the Administrator believes that the prior decisions were incorrectly decided. The Sabbath School Board is hereby ordered to pay a civil penalty of $10,000, and to remove the space heaters or provide proper ventilation for the space heaters."

Question to think about: Has EPA adequately justified its change in policy?
 

The facts are the same as the first hypothetical, except that EPA's order provided:

"Although we have previously held that gas space heaters do not harm indoor air quality, our prior decisions focused on space heaters that were used with ventilation systems that removed carbon monoxide emissions. The Sabbath schools do not have any ventilation system to remove carbon monoxide emissions, and the space heaters are not even operated near the windows of the classrooms. As a result, the space heaters are emitting dangerous levels of carbon monoxide. Therefore, we find that operation of gas space heaters in a school without proper ventilation harms air quality in violation of the Indoor Air Quality Act and order the Sabbath School Board to remove the space heaters or provide proper ventilation for the space heaters."

Same as Hypo 3, except that EPA's order also requires the Board to pay a civil penalty of $10,000 for operating the gas heaters in the school prior to the agency's decision in the adjudication.

Question to think about: Assuming that EPA can change its policy through this adjudication, can EPA apply the changed policy to the facts of this case, order the School Board to replace the heaters or improve the ventialtion, and impose civil penalties on the Board?

A. The facts are generally the same as in Hypo 3, and EPA's final order is the same as in Hypo 3.

B. However, in several other adjudications involving other school districts prior to the time that the parents asked the Sabbath School Bd. to replace the heaters, EPA reaffirmed its position that, in general, gas space heaters do not harm indoor air quality. In each of those decisions, though, EPA stated that there may be individual situations where gas space heaters could harm indoor air quality because they emit carbon monoxide, a potentially deadly gas.

C. Question to think about: Is the requirement in EPA's order that the School Board install windows more or less defensible in this hypothetical than in the last hypothetical? Why?

A. The facts are generally the same as in Hypo 4. In addition, assume that EPA had, in adjudications between 1987 and 1996, held that "gas space heaters do not harm indoor air quality." (i.e. it did not foreshadow the change in policy.) In the adjudication regarding the Sabbath School system, the agency completely reverses itself and holds that "gas space heaters always harm indoor air quality." As a result, the agency requires the Board to pay a civil penalty of $10,000. Assume that the reviewing court strikes down the fine as an improper retroactive application of the agency's change in policy.

B. Question to consider: If EPA brings an enforcement action against the Cole School because it was used unventilated gas space heaters in its classrooms after the agency decided the Sabbath case, can EPA, in the adjudication regarding the Cole School, merely point to the Sabbath case as establishing a policy that unventilated gas space heaters cannot be used in schools, explain why the policy applies in this case, and provide no further explanation for a conclusion that the Cole school district violated the Indoor Air Quality Act by using the unventilated gas space heaters, or will the agency have to independently justify the Sabbath change in policy again in the Cole adjudication?