Legal Memorandum

Case: Appeal for Rory Clarkson v Pollution Control Agency

Instruction from the Professor:

I have just met with Mr. Rory Clarkson of Raging Radios. He is appealing the ALJ decision to uphold Pollution Control Agency's closing of 70% of his factories. He has provided me with the information below regarding his case.

Read through the Statutes and Facts below and send me a legal memorandum with all of the legal issues involved. I expect your memo to be 7-10 pages, typed, double spaced. All cases and resources used for support can be found in Administrative Law by John D. Deleo Jr. Citations from the book material should follow APA formatting.

Information regarding on the case:

Statutes

In September 2009, Congress created the Pollution Control Agency (PCA) through an enabling act which stated in part:

The Pollution Control Agency is created to monitor the pollution output of factories and businesses within 5 miles of residential neighborhoods. They are authorized to regulate pollution levels to reasonable health standards after a hearing on the record. Further, they are authorized to criminally prosecute any offenders.

The enabling act was created and passed in the House of Representatives and then was sent to the President for approval. Using his line-item veto power, the President vetoed only the portion "within 5 miles of residential neighborhoods". The bill went into effect and the PCA was created.

The PCA was made up of leading experts with experience in industrial waste and special recycling practices. They met and began reviewing statistical data on pollution and industry, determining what regulations needed to be created. After much debate, the PCA proposed the following regulation:

Noise pollution constitutes any sounds made 85dB (decibels) and above. Industries with 4 or more hours of noise pollution will be found to have violated reasonable health standards.

The PCA published the proposed regulation in the Federal Register, allowed for 60 days of comment, and then issued the final rule later published in the Code of Federal Regulations. The regulation became effective in November 2010. In December 2010, an internal memorandum was adopted which stated:

Any noise pollution after 7pm will be found to have violated reasonable health standards.

Facts

Raging Radios is a national producer of radios, CD players, and more recently, MP3 players. They stay on top of the technological advancements and regularly update their methods of providing the public with sound devices. The owner of Raging Radios, Rory Clarkson, is a good man who likes to follow the rules. He ensures OSHA standards are met in the machinery warehouse; he pays his taxes on time, and willingly meets all government standards in the industry. Within each Raging Radios factory they have a testing wing. Workers take random samples from the production line and test the sound quality by playing music at different volumes through their speakers. Rory Clarkson, being a good man, is a family man and encourages his employees to have as much family time as possible. To this end, Rory builds all of his factories near towns and neighborhoods where his employees will likely be coming from. Further, Rory has created irregular shifts to meet the needs of parents. Thus, the testing wing is regularly in use from 9-12pm.

In May 2011, an inspector for PCA showed up at the Indianapolis branch of Raging Radios. Per Rory Clarkson's instructions, the branch manager was congenial and willing to cooperate fully with the inspector. The inspector made some notes about Raging Radios' excellent recycling practices and waste disposal. During the examination of the testing wing, the inspector noticed the logbook showed use of decibels over 85 after 7pm, but said nothing to the branch manager. After the inspector's report was submitted to the PCA, the agency requested submittal of all testing wing logbooks from Raging Radios. Rory Clarkson was happy to oblige. The next week, PCA closed 70% of the Raging Radios locations for noise pollution by posting notices on the door and preventing employees from entering the building. Rory Clarkson was confused and angry because he had accommodated all of their requests but had not expected the closings. The PCA contacted Rory and issued a subpoena duces tecum for all of Rory's personal financial documents and those of his wife.

Rory Clarkson denied the claim of noise pollution. At the hearing, the administrative law judge (ALJ) was presented with the regulation and memorandum as well as testimony by several Raging Radios employees. Before he had made a decision, the ALJ sent the information to some noise pollution experts to get their opinion on the health risks involved. The experts indicated that running the testing wing from 9-12pm increased the health risks of neighboring children. Relying on this information, the ALJ decided in favor of the PCA.