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United States ex rel. EPA v. Hill Petroleum Co.

Citation: 17 ELR 20457
No. No. 85-0184 L, (W.D. La., 07/29/1986)

The court rules that a violation of a quarterly average limitation of the Environmental Protection Agency's (EPA's) lead phasedown rule constitutes only a single day of violation under Clean Air Act § 211(d), which imposes a mandatory $10,000 per day civil penalty for violations of EPA's fuel additive regulations. The court first holds that EPA's interpretation that a violation of a quarterlyaverage constitutes 90 days of violation under § 211(d) is entitled to only minimal deference. Congress' failure to delegate to EPA the authority to interpret the meaning of § 211(d) weighs against deference to the agency. Moreover, a district court's authority to interpret the provision is at least as great as EPA's since § 211(d) authorizes the district courts, not EPA, to assess liability and impose penalties for violations of the lead phasedown regulations. The court rejects EPA's policy argument that in exchange for a more economical and convenient quarterly average reporting scheme, the refining industry implicitly accepted EPA's intepretation that a quarterly violation constitutes 90 days of violation. The Act's deterrence purpose cannot alone justify EPA's interpretation, since fairness to the industry must also be considered. EPA's consistent interpretation of § 211(d) in its enforcement actions deserves little weight because it did not have authority to bring these enforcement actions. Section 211(d)'s language that a violator is liable for "each and every day of the continuance of such violation," while suggesting that Congress intended that $10,000 be forfeited for each day the violation continued, does not further EPA's claim that a single quarterly violation constitutes 90 days of violation. Although an actual "day" of violation can never occur under the quarterly reporting scheme in EPA's lead phasedown regulations, the court infers that a quarterly average violation contains at least one day of violation and concludes that a $10,000 penalty can be imposed for a quarterly average violation. The court next distinguishes cases holding that violations of a monthly average permit limitation constituted 30 days of violations under the civil penalty provision of the Federal Water Pollution Control Act, which also provides for the assessment of a $10,000 penalty calculated per day of violation. In those cases, the courts were setting a potential maximum civil penalty, not a mandatory forfeiture as in Clean Air Act § 211(d).

Having concluded that EPA's interpretation merits minimal deference, the court turns to its own construction of § 211(d). While § 211(d) clearly authorizes a $10,000 mandatory penalty for each day on which a violation occurs or continues, there is no evidence from the statute or its legislative history that Congress intended to authorize the courts to impose a $900,000 penalty for each quarter in which a violation of a quarterly average has occurred. Since penal statutes are strictly construed and the imposition of a $900,000 fine for one violation of a quarterly average is excessive and unfair, the court concludes that § 211(d) does not authorize a mandatory forfeiture of $900,000 per quarterly violation when there is no proof that a daily violation has continued for 90 days.

Counsel for Plaintiff
James Robertson
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4079

Alan Loeb
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-3231

Counsel for Defendant
Keith A. Rodriguez
P.O. Box 30420
Lafayette LA 70503
(318) 233-4413