B.J. Carney Industries Inc. v. United States Environmental Protection Agency

192 F.3d 917, 99 Daily Journal DAR 10023, 99 Cal. Daily Op. Serv. 7883, 30 Envtl. L. Rep. (Envtl. Law Inst.) 20113, 49 ERC (BNA) 1252, 1999 U.S. App. LEXIS 23005
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 23, 1999
Docket98-70315
StatusPublished
Cited by2 cases

This text of 192 F.3d 917 (B.J. Carney Industries Inc. v. United States Environmental Protection Agency) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
B.J. Carney Industries Inc. v. United States Environmental Protection Agency, 192 F.3d 917, 99 Daily Journal DAR 10023, 99 Cal. Daily Op. Serv. 7883, 30 Envtl. L. Rep. (Envtl. Law Inst.) 20113, 49 ERC (BNA) 1252, 1999 U.S. App. LEXIS 23005 (9th Cir. 1999).

Opinions

Opinion by Judge O’SCANNLAIN; Dissent by Judge CANBY.

O’SCANNLAIN, Circuit Judge:

We must decide whether the time to file an appeal of a class II civil penalty assessment under the Clean Water Act runs from the issuance of an Administrative [918]*918Law Judge’s civil penalty order, or from the date that such an order becomes final.

I

B.J. Carney Industries, Inc. (“Carney”) operated a wood pole treating facility from 1982 to 1990, water from which eventually flowed into the city of Sandpoint, Idaho’s publicly owned treatment works (“POTW”). Pursuant to its National Pollutant Discharge Elimination System (“NPDES”) permit, Sandpoint was required to issue industrial waste acceptance (“IWA”) forms to the industrial users of its POTW, like Carney.

In November '1985, the Environmental Protection Agency (“EPA”) informed Carney in writing that its discharge to the Sandpoint POTW was “in violation of the pretreatment standards” because it contained pentachlorophenol (“PCP”) and diesel grade oil. In that same letter, however, EPA indicated that, because “Sandpoint was delegated pretreatment program authority,” EPA would defer to Sandpoint’s enforcement of pretreatment standards. On January 9, 1987, Sand-point issued Carney an IWA permitting the discharge of small amounts of PCP.

Carney, in turn, contacted EPA to challenge its November 1985 determination that Carney’s discharge violated the applicable pretreatment standards and to assert that the IWA worked out between Sandpoint and Carney was “far more consistent with sound environmental policy.” Several months later, on September 4, 1987, EPA responded by reasserting that Carney’s discharge to the Sandpoint POTW was a violation of the “no discharge standard,” despite the fact that Sandpoint had issued Carney an IWA permitting such discharge. While EPA made clear that it was dissatisfied with Sandpoint’s enforcement actions because it believed that Carney was in violation of the “no discharge standard,” EPA again deferred to Sandpoint’s enforcement authority, stating that it would “be advising the city of these concerns.” Despite various hearings and correspondence on the matter with EPA and the city, Carney’s IWA permitting discharge of PCP remained in force until May 29,1990.

Sandpoint subsequently issued Carney a new IWA permitting no discharge of PCP. Soon thereafter, on July 16, 1990, Carney shut down its plant and voluntarily spent hundreds of thousands of dollars to clean up the site. Roughly two months later, apparently ignorant of the fact that Carney had shut down its plant and thus ceased discharging any PCP, EPA filed an administrative complaint against Carney. EPA later amended the complaint to reflect the closing of the facility, but sought a civil penalty assessment for the previous years of noncompliance anyway.

After extensive proceedings and a hearing, the ALJ found Carney in violation of the pretreatment standards and assessed a gravity-based penalty of $9,000, but refused to allow EPA to recover Carney’s economic benefit from its violations. The ALJ indicated that such a small penalty was warranted because it appeared that Carney’s “actions with regard to the PCP discharge were taken in good faith, particularly in light of the differing regulatory approaches taken by Sandpoint and EPA, and there [was] nothing in the record to establish that Carney was intentionally dilatory in addressing the problem.” Both parties appealed to the Environmental Appeals Board (“EAB”), which affirmed the finding of liability and the assessment of a gravity-based penalty, but rejected Carney’s equitable estoppel defense and remanded solely for (1) determination of how much economic benefit Carney received during the limitations period and (2) recalculation of the penalty accordingly. On remand, a different ALJ determined that the economic benefit penalty coupled with the gravity-based penalty exceeded the statutory maximum penalty of $125,000, and thus assessed a $125,000 civil penalty.

The ALJ’s civil penalty order was entered on January 5, 1998; Carney filed [919]*919this appeal seventy days later on March 16, 1998, challenging the amount of the penalty and reasserting its estoppel defense. The government subsequently moved for dismissal of the appeal as untimely.

II

The Clean Water Act, 33 U.S.C. § 1251 et seq. (“CWA”), provides that a civil penalty assessment may be appealed to a federal court of appeals “by filing a notice of appeal in such court within the 30-day period beginning on the date the civil penalty order is issued.” 33 U.S.C. § 1319(g)(8) (emphasis added). The CWA further provides that “[a]n order issued under [§ 1319(g) ] shall become final 30 days after its issuance unless a petition for judicial review is filed under [§ 1319(g)(8) ].” Id. § 1319(g)(5) (emphasis added). Once an order becomes final (i.e., thirty days after issuance), the Attorney General may bring a civil action to collect. See id. § 1319(g)(9).

There is no dispute that ALJ issued the order assessing the penalty on January 5, 1998 and that Carney did not file an appeal until March 16, 1998, more than thirty days thereafter. The government asserts that we have no authority to hear this appeal because statutory time limits on the appeal of agency actions are jurisdictional in nature. Cf. Felt v. Director, Office of Workers’ Compensation Programs, 11 F.3d 951, 952 (9th Cir.1993).1 As the government points out, the statutory provisions in question plainly distinguish between the issuance of a civil penalty order and its finality, and further make plain that the time to appeal commences upon the issuance, rather than the finality, of such an order assessing a penalty.

Carney responds by asserting that the ALJ’s order was merely an “initial decision” which became an appealable order issued by the EAB only after forty-five days elapsed following its issuance by the ALJ. See 40 C.F.R. § 22.27(c) (providing that a presiding officer’s initial decision shall become final forty-five days after service unless an appeal is taken to the EAB or the EAB elects to review sua sponte). Carney asserts that the CWA empowers only “the Administrator” of EPA to assess penalties, see generally 33 U.S.C. § 1319, and that the Administrator has delegated this authority to the EAB, rather than to ALJs. Put most simply, Carney asserts that ALJs lack the authority to issue a civil penalty order within the meaning of 33 U.S.C. § 1319.

As the government points out, however, the Administrator has delegated to the presiding officers in each region (like the ALJ here) the authority to “issue all necessary orders” and “do all other acts ... necessary for the efficient, fair and impartial adjudication of issues.” 40 C.F.R. § 22.04(c).

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192 F.3d 917, 99 Daily Journal DAR 10023, 99 Cal. Daily Op. Serv. 7883, 30 Envtl. L. Rep. (Envtl. Law Inst.) 20113, 49 ERC (BNA) 1252, 1999 U.S. App. LEXIS 23005, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bj-carney-industries-inc-v-united-states-environmental-protection-ca9-1999.