Jump to Navigation
Jump to Content

B.J. Carney Indus., Inc. v. EPA

ELR Citation: 30 ELR 20113
Nos. No. 98-70315, 192 F.3d 917/49 ERC 1252/(9th Cir., 09/23/1999)

The court dismisses as untimely a wood-treating facility's appeal of a civil penalty assessed by an administrative law judge (ALJ) for violating the Federal Water Pollution Control Act (FWPCA). The court first holds that it lacks jurisdiction to review the penalty assessed against the facility. FWPCA §309(g)(8) provides that a civil penalty assessment may be appealed to federal court within the 30-day period beginning on the date the penalty was issued. The ALJ issued the order assessing the penalty on January 5, 1998, and Carney did not file an appeal until March 16, 1998, more than 30 days thereafter. Further, because ALJs are expressly empowered to issue civil penalty assessments, the appeal period began when the ALJ issued the penalty, not when the Environmental Appeals Board issued an order finalizing the penalty.

Counsel for Petitioner
Jeffrey L. Supinger
Witherspoon, Kelley, Davenport & Toole
110 U.S. Bank Bldg.
422 Riverside Ave., Spokane WA 99201
(509) 624-5265

Counsel for Respondent
Thomas H. Pacheco
U.S. Department of Justice
301 Howard St., Ste. 870, San Francisco CA 94105
(415) 744-6491

Before Canby, Jr. and Brunetti, JJ.