EPA’s in-house tribunal undermines fairness and political accountability

Roger and Cheryl Janakus opened their Door & Window Superstore in 1983, selling doors and windows from their Chicago-area retail store and showroom. Under the careful leadership of the husband-wife team, the small business has earned a sterling record and many repeat customers.

Nevertheless, the EPA is pursuing the Janakuses with claims that stretch the meaning of even the agency’s own regulations, through a bogus tribunal within its own walls, under its own rules, and before its own employees acting as judges. With their livelihoods and rights on the line, Roger and Cheryl are fighting back.

Due to lead exposure risks, remodeling and renovation of homes built before 1978 fall under the federal Toxic Substances Control Act (TSCA) and require Environmental Protection Agency certification. Renovation companies must provide owners and occupants of these homes informational pamphlets about lead exposure. Violators face daily fines of nearly $47,000 per violation.

But Door & Window Superstore is not a renovation company. It just sells doors and windows and helps its customers find quality renovation experts. While Roger and Cheryl refer these experts to their customers, the workers are not employees of their company.

But the EPA nonetheless filed an administrative enforcement action claiming that they violated the TSCA. The agency claims that Door & Window was the “general contractor” of the renovations performed on seven residences. Roger and Cheryl deny the allegations. Regardless, the EPA does not allege that any of the renovation work resulted in the mishandling of lead or any other toxic substance. Despite no allegations of actual lead exposure or lead-related harm, the EPA seeks to punish Door & Window for these purely “paper” violations with $375,000 in penalties.

Worse, the EPA has filed its case against Door & Window in-house—within its own walls, under its own rules, and in front of an administrative law judge, who is an EPA employee. Any appeal of that decision goes to the agency’s Environmental Appeals Board (EAB), which is staffed with more EPA employees.

Unsurprisingly, this cakewalk through a court-like process of their own making results in sky-high win rates for agencies as a settlement is often the lesser evil when compared with the near-insurmountable hurdle of fighting bureaucrats in a process stacked in their favor. The Constitution guarantees basic principles of fairness, including the right to a fair trial before an impartial judge and jury. This means a real court of law, not court-like procedures in court-like settings overseen by executive-branch employees.

Moreover, neither the ALJs nor the agency’s appeals board members were properly appointed to office. These administrative judges wield tremendous power to make final, binding legal judgments that can destroy lives—like the Janakuses’ proposed $375,000 penalty. Because this power is so significant, the Constitution permits only politically accountable officials—those nominated by the president and confirmed by the Senate—to wield it.

The Janakuses have due process rights to be heard in a real court. They also have private liberty and property rights in running their lawful business and keeping its money.

And the Constitution prohibits the government from imposing excessive fines that are grossly disproportionate to the alleged harm.

Represented free of charge by PLF, Cheryl and Roger are fought back on two fronts: in the administrative proceeding, to contest the EPA’s claims, and in federal court, to challenge the agency’s sham in-house tribunal and absurdly exorbitant fine as unconstitutional.

After their lawsuit was filed, EPA offered Ro Cher favorable settlement terms, which they accepted.