Section 1: No person may engage in an activity or practice that harms 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.
 

Section 3: EPA may promulgate regulations as necessary to carry out its obligations under this Act.

A.   In 1987, EPA promulgates regulations that provide 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.   After the parents filed a complaint with EPA, alleging that the School Board was violating the Indoor Air Quality Act, EPA conducted a hearing and issued the following order:

"Although our regulations provide that gas space heaters do not harm indoor air quality, in our development of the regulation, we only analyzed information about space heaters that were operated 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."

A.  In 1987, instead of promulgating regulations, EPA established a guidance manual for administration of the Indoor Air Quality Act. One section of that guidance manual provides that gas space heaters do not harm indoor air quality.

B.  EPA does not promulgate any regulations that define what activities will "harm indoor air quality."

C.  The remaining facts are the same as in the last hypo (except that EPA's order does not make any reference to regulations.)

D. Question to think about: Is it appropriate for the agency to change its policy through adjudication?
 

A. The facts are generally the same as the last hypothetical, except that:

1.  EPA promulgated rules for implementing the Indoor Air Quality Act that provided that, within 30 days before a hearing before the Administrator to determine whether a person has violated or is violating this Act, the Regional Office of the EPA in which the alleged violator is located shall transmit any information regarding the alleged violation to the Administrator's Office.

2.  The Regional Office transmitted the information regarding the Sabbath schools to the Administrator's office 28 days before the hearing, and the Administrator held a hearing and issued the same order as in the last hypothetical .

B. Question to think about: Should a reviewing court invalidate EPA's order based on EPA's failure to follow its own rules regarding the hearing procedure?
 

A.  The statute is the same as above.

B.   In 1987, EPA promulgates regulations that provide that gas space heaters do not harm indoor air quality.

C.   In 1996, in reliance on those regulations, the Sabbath School Board installs gas space heaters in its schools.

D.   Six months after the heaters are installed, EPA promulgates new regulations that provide that (i) gas space heaters that are not properly ventilated harm indoor air quality; (ii) EPA can order persons that have installed or use gas space heaters indoors without proper ventilation to remove them or to provide proper ventilation for them; and (iii) EPA may impose fines on persons who use gas space heaters without proper ventilation, or have done so during the previous year.

E. Question to think about: Assuming that the agency's change in policy in the new regulation is not arbitrary or capricious, can the agency impose a fine on the Sabbath School Board for installing the heaters and using them before the new regulations were issued? Can it require the School Board to remove the heaters or provide proper ventilation for them?

A.  The statute is the same as above.

B.  EPA has not promulgated any regulations that define which activities "harm indoor air quality." However, in a series of adjudications between 1987 and 1996, EPA has held that gas space heaters harm indoor air quality."

C.  The Sabbath School Board is preparing to build a new school and is not aware of the adjudications that have held that gas space heaters harm indoor air quality, but is concerned that the Board should comply with all environmental laws and regulations in building the new school. Thus, they meet with representatives of EPA's regional office in Atlanta. In the meeting with EPA, the School Board indicates that it plans to install gas space heaters in the classrooms without a ventilation system, and asks whether that will violate any laws or regulations. The EPA representative, who has only worked with the agency for a few weeks, tells the Board that installing gas space heaters in the school without a ventilation system will not violate any environmental laws or regulations.

D.  After the school has been built, EPA issues an order to the school board, imposing a fine of $10,000 on the board, and ordering the board to remove the space heaters or provide proper ventilation.

E.  Question to think about: Representing the School Board, what argument could you make that EPA cannot issue the order that it did? With what success?
 

1. Statutory provisions: Assume that the Indoor Air Quality Act establishes a program that makes grants available to persons to make physical improvements of buildings to improve indoor air quality. However, the Act provides that if a person is making improvements to comply with an order issued by EPA under the Act, they must apply for the grant within 30 days after the order has been issued.

2. Facts: After EPA issues an order to the Sabbath School Board, requiring the Board to replace the heaters or provide proper ventilation, representatives of the School Board go back to EPA, and inquire about the grant program. The representative of EPA tells them that they have to file an application within 60 days of entry of the order against them. Forty-five days after the order was issued, the school board filed an application for a grant, which EPA denied because it was untimely.

3. Question to think about: Do you have any additional arguments (beyond estoppel), if you represent EPA, that the government cannot be required to make the grant?