An “arrival then denial” occurs when uncertified engines arrive at a U.S. port, but are denied entry to the U.S. by Customs & Border Protection (Customs). Why does this matter? In most cases these uncertified engines are sent back to the country of origin. However, due to resource constraints, a sizeable number of uncertified engines slip past Customs and enter the U.S. each year. Uncertified engines, without proper controls, have been estimated to emit at least 30% more emissions than their certified counterparts. Such emissions exacerbate climate change, acid rain, and air quality generally. EPA attorneys assert that their best tool to stem this tide is a strong enforcement program with stiff penalties for importers of uncertified engines.
The purpose of this paper is to outline how EPA can build a case against an importer of uncertified engines. Although academic in nature, this paper can largely function as an EPA practitioner’s guide on the statutory authority and evidentiary rules underlying such a case against an importer of uncertified engines.
Part One employs the canons of statutory interpretation and applicable administrative precedents in a thorough analysis of §203(a) of the Clean Air Act (CAA). Part Two utilizes the Federal Rules of Evidence to solve the evidentiary challenge of proving one’s case without possession of the real evidence. Lastly Part Three addresses how importations through NAFTA have had the effect of weakening the CAA and the National Environmental Policy Act (NEPA).
Levine, Jesse, "Arrival Then Denial: Interpreting §203(a) of the Clean Air Act, Analyzing Evidentiary Challenges, & Assessing Conflicting Statutory Directives" (2010). Distinguished Student Research Papers. Paper 2.