Lead Opinion
Opinion by Judge Skopil; Dissent by Judge Ferguson.
Trident Seafoods Corporation (“Trident”) appeals a civil penalty imposed for violating the Clean Air Act. The issue presented is whether Trident’s failure to notify officials of its intent to remove asbestos constitutes a “one-time” violation or a “continuous” violation for purposes of determining a lawful penalty. The district court concluded that Trident’s violation was continuous. We conclude that the regulation governing the notice requirement is not sufficiently clear to permit imposing a penalty greater than the statutory maximum for a single violation. We reverse and remand.
I.
Trident purchased and renovated an abandoned fish cannery in Anacortes, Washington. Asbestos was removed from the cannery site during five days in August and September 1988. A state official learned of the asbestos removal and inspected the site. Trident was cited by the state for failing to give advance notice of the company’s intent to remove asbestos, and paid a $250 fine to the state. The Environmental Protection Agency (“EPA”) was informed of the violation.
Over three years later, EPA gave notice of its intent to charge Trident with one notice violation and four substantive violations of
The district court imposed a civil fine for the notice violation. The court rejected Trident’s argument that failure to give notice is a single violation occurring on a single day, and thus subject to a statutory maximum penalty of “$25,000 per day of violation.” Rather, the court held “as a matter of law that failure to comply with the notice requirement is a continuing violation.” The court concluded that Trident’s violation extended from the date that Trident should have reasonably given notice (10 days before the work began) to the date that the state official learned of the asbestos removal. This 44 day period subjected Trident to potential civil liability of $1,100,000. The district court, however, considered mitigating factors and reduced Trident’s fine to $64,750.
II.
Our starting point is the language of the statute and implementing regulations. See Gwaltney v. Chesapeake Bay Foundation, Inc.,
Neither the statute nor the regulation expressly addresses whether the failure to comply with the notice requirement is a one-time violation or a continuing violation. This is not a case where “limpid prose puts an end to all dispute.” Gwaltney,
In Trident’s case, however, there were no specific time periods defined by the statute or regulation. Trident’s only obligation under the clear language of the regulation then in effect was to notify EPA before renovation began. This could reasonably be interpreted to mean that the only “day of violation” occurred on the day before Trident commenced renovation.
The district court acknowledged the ambiguity of the regulatory scheme and the lack of ease law, and turned to an examination of the policy considerations underlying the Clean Air Act. The court determined that “the self-evident purpose of notification [is] to enable the enforcement agency to monitor asbestos removal and assure effective compli-
There is a competing argument, however, that notwithstanding policy concerns, the agency had both the opportunity and the obligation to state clearly in its regulations either that there is a continuous duty to notify or that a failure to notify gives rise to a penalty based on the length of time that the breach exists. We have reasoned that when “violation of a regulation subjects private parties to criminal or civil sanctions, a regulation cannot be construed to mean what an agency intended but did not adequately express.” Phelps Dodge Corp. v. Federal Mine Safety and Health Review Comm’n,
We are persuaded by this line of reasoning, and we conclude that Trident should not be subject to a “continuous violation” penalty that is not clearly applicable either by statute or by regulation to Trident’s conduct. Our conclusion is not inconsistent with the proposition that deference is ordinarily owed to an agency’s interpretation of its own regulations. See Providence Hosp. of Toppenish v. Shalala,
III.
Trident should be penalized only for a single violation. A remand is required to allow the district court to impose a lawful fine. We reverse and remand to the district court for imposition of a civil penalty not to exceed the statutory maximum amount of $25,000.
REVERSED and REMANDED.
Dissenting Opinion
dissenting:
Because the plain meaning of the statute, 42 U.S.C. § 7413(b), requires that Trident’s failure to notify the Environmental Protection Agency (“EPA”) be assessed as a continuing violation, I dissent. The judgment of the district court should be affirmed.
Background
The defendant, Trident Seafoods Corporation, is a seafood processing corporation. In May 1988, it purchased and began renovation of an abandoned fish cannery. The renovation included removal of asbestos insulation by a subcontractor.
The asbestos removal began on August 24, 1988. The subcontractor eventually disposed of 5.21 tons of bagged asbestos at a landfill, but left at least five bags of asbestos at the facility. At the time that he removed asbestos from Trident’s facility, the asbestos removal subcontractor was not certified to remove asbestos. The subcontractor used his 11-year-old son and another person with no experience in asbestos removal to carry out the clean-up at the Trident facility. On September 26, 1988, an asbestos inspector for the Northwest Air Pollution Control Authority learned from the owner of the landfill that Trident had disposed of asbestos, and on that day he went to inspect the facility. On September 30, 1988, Trident gave the government notice of its intent to renovate. The five bags of asbestos were removed by Trident from the facility on October 5, 1988.
When the facility was first inspected by the asbestos inspector on September 26,
In 1992, the United States sued Trident and its general contractor and subcontractor for violations of the asbestos regulations governing the removal of asbestos from its facility. These violations included four work practice violations and the following claim of notice violation: “Defendants failed to provide written notice, before beginning renovation, of the intention to renovate a facility, in violation of 40 C.F.R. § 61.146 (1990) and sections 112(c) and 114(a)(1)(B) of the [Clean Air] Act, 42 U.S.C. §§ 7412(e) and 7414(a)(1)(B) (1983).” The district court granted summary judgment in favor of the government on the issue of whether Trident committed the notice violation.
Upon consideration of all mitigating factors, the district court assessed a penalty of $64,750 against Trident out of a possible $1,100,000 ($25,000 per day for 44 days). The district court in its penalty determination concluded that the violation of the notice requirement was a continuing violation, given the self-evident purpose of notification to enable the EPA to monitor asbestos removal and assure effective compliance with work rules.
Discussion
Trident does not contest that it was in violation of the regulation requiring notice and specifying the contents of the notice. Its challenge is to the statute, 42 U.S.C. § 7413(b), that provides for the civil penalty of not more than $25,000 per day of violation. Specifically, Trident’s challenge raises the issue whether the notice violation is a single-day or continuing violation.
The Clean Air Act, 42 U.S.C. § 7412 (1988), authorizes the Environmental Protection Agency (“EPA”) to develop National Emission Standards for Hazardous Air Pollutants.
42 U.S.C. § 7412(c) and (e) (1988) provide that a violation of the emission standards adopted by the EPA constitutes a violation of the Clean Air Act.
The Administrator shall, in the case of any person which [sic] is the owner or operator of a major stationary source, and may, in the case of any other person, commence a civil action ... to assess and recover a civil penalty of not more than $25,000 per day of violation ...4
The majority agree with Trident’s argument that the regulation governing the notice requirement is not sufficiently clear to permit imposing a penalty greater than the statutory maximum for a single violation. They conclude that neither the statute nor the regulations expressly address whether the failure to comply with the notice requirement is a one-time violation or a continuing violation. However, they cite no case that has held that in order for there to be a continuing violation of any conduct (relating to notice or otherwise), the statute or regulation must expressly state that it is.
Numerous courts have exclusively used the plain language of the statute in order to determine the appropriate penalty for substantive and procedural violations of the Clean Air Act and the related regulations. See, e.g., United States v. Midwest Suspension and Brake,
In the plainest terms possible, Trident has succeeded in convincing the majority that the words “per day of violation” be eliminated from the statute so that it effectively reads “not more than $25,000.” That interpretation is not permitted. Each word of a statute must be given meaning. Boise Cascade Corp. v. United States Environmental Protection Agency,
The act of not providing notice is an act of omission. Trident believes that when it comes to a determination of continuity, there is a difference between an act of omission and an act of commission. However, one who performs an act of commission is liable for every day that the act occurs. If the act is one of omission, then the violation continues for each day that the act of omission occurs — that is, until compliance.
There is little need to explain the import tance of the notice requirement when it comes to asbestos. Exposure to asbestos can cause a debilitating lung disease called asbestosis, a cancer of the chest and abdominal lining called mesothelioma, and cancers of the lung, esophagus, stomach, and colon. 39
The plain language of the statute “not more than $25,000 per day of violation” disposes of Trident’s claim that only one day of violation can be assessed against it. The district court was correct in its determination that the notice violation resulted in continuing harm which had to be penalized as a continuing violation. The argument of Trident that there was only one day of violation is based on the incorrect assumption that in this case there was only one day of harm— the first day Trident was required to give notice. However, it is clear that each day that Trident failed to notify the EPA resulted in a separate harm from the dangers of asbestos exposure because on each of the days that notice was not given, Trident failed to properly dispose of the asbestos in the facility. The facts in this case clearly spell out the substantive damages when asbestos is improperly removed by untrained workers.
Trident does not dispute that it violated the Clean Air Act by violating the notification requirement. Trident only disputes the punishment it received for that violation. The plain language of the Clean Air Act, 42 U.S.C. § 7413(b) (1988), is dispositive as to the appropriate penalty for Trident’s violations, and therefore I dissent.
Notes
. Because this case arose in 1988, the 1988 versions of the Clean Air Act and related regulations have been used throughout these proceedings. The most recent version of § 7412 retains the authorization to promulgate regulations.
. The most recent amendments to these regulations contain the same notice requirement at 40 C.F.R. § 61.145(b) (1994).
. The most recent amendments to the Clean Air Act contain these provisions at 42 U.S.C.A. § 7412(d)(2) and (f)(4) (West Supp.1995).
.The most recent amendments to the Clean Air Act retain the civil penalty provision at 42 U.S.C.A. § 7413(b) (West Supp.1995), but modify the language as follows:
(b) Civil judicial enforcement
The Administrator shall, as appropriate, in the case of any person that is the owner or operator of an affected source, a major emitting facility, or a major stationary source, and may, in the case of any other person, commence a civil action ... to assess and recover a civil penalty of not more than $25,000 per day for each violation ...