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Hanson v. United States

Citation: 19 ELR 21074
No. No. B-88-0949-CA, 710 F. Supp. 1105/30 ERC 1090/(E.D. Tex., 05/04/1989)

The court holds that there is substantial evidence in the Environmental Protection Agency's (EPA's) administrative record to support EPA's finding that an individual violated § 301(a) of the Federal Water Pollution Control Act (FWPCA), and that EPA did not abuse its discretion in assessing an administrative civil penalty under FWPCA § 309(g) of $ 24,000. The court first holds that petitioner did not have to request an EPA hearing under FWPCA § 309(g)(2)(A) before appealing the penalty. The court next holds that petitioner violated FWPCA § 301(a) by discharging pollutants into navigable waters. The dirt, rock, brick, sheet metal, and other fill deposited by petitioner are pollutants under FWPCA § 502(6). The lake by which petitioner deposited these pollutants is a navigable waterway because portions of it are subject to tidal flooding. Petitioner was therefore required to obtain an Army Corps of Engineers permit under FWPCA § 404 before discharging fill material to the lake, even though it may have been Corps activity that made the lake a water of the United States. The court holds that the record establishes at least three unpermitted placements of pollutants by the lake. Petitioner's violation of his duty to obtain a § 404 permit from the Corps authorized EPA to impose a penalty under § 309(g). The court also holds that EPA did not abuse its discretion in imposing a Class I penalty of $ 24,000. The FWPCA authorizes Class I penalties of up to $ 25,000 per penalty and $ 10,000 per violation, and the record shows at least three violations. EPA had discretion to impose nearly the maximum Class I penalty, because both the Agency and the Corps had repeatedly and unsuccessfully sought compliance.

Counsel for Petitioner
Walter Umphrey
Umphrey, Swearingen, Eddins & Carver
P.O. Box 4905, Beaumont TX 77704
(409) 835-6000

Counsel for Respondent
Barbara C. Luke
Office of Regional Counsel
U.S. Environmental Protection Agency
12th Fl., Ste. 1200, 1445 Ross Ave., Dallas TX 75270
(214) 655-6444