In May 1988, Trident Seafoods, a seafood processing corporation, purchased and began renovating an abandoned fish cannery in Anacortes, Washington. The renovation included asbestos removal by a subcontractor, which began on August 24, 1988. On September 26, 1988, an asbestos inspector for the Northwest Air Pollution Control Authority, having learned that Trident had been disposing of asbestos, arrived to inspect the facility. Trident paid a $250 fine for failing to give advance notice of its intent to renovate and remove the asbestos, a violation of the Clean Air Act (CAA). The Environmental Protection Agency (EPA) was informed of the violation.
Three years later, in 1992, EPA charged Trident and its contractor and subcontractor with four work practice violations and one notice violation of the CAA. When Trident refused to pay the $346,000 civil fine, the United States filed suit. The four work practice charges went to trial and the jury found in favor of Trident. The district court entered summary judgment in favor of the United States on the charge of failing to provide notice. The district court viewed Trident's notice violation as a continuing violation extending from the date notice should have been given to the date asbestos removal began (forty-four days). The court imposed a civil fine of $64,750, reduced from a potential $1,100,000 by mitigating factors.
Trident did not challenge the assertion it violated the notice requirement of the CAA. Instead, it challenged the district court's interpretation of the penalty-assessment statute.1 Section 113(b) states violations of the CAA are punishable by penalties of "not more than $25,000 per day of violation." Trident argued failure to give notice is a one-time violation occurring on only one day, so the fine should be limited to the statutory maximum of $25,000.
Recognizing the statute, the applicable regulation, and case law do not state whether failure to provide notice is a one-time or continuing violation, the Ninth Circuit looked to the clear language of the regulation. The regulation only required Trident to notify EPA before renovation began. Therefore, the court reasoned, it could be interpreted to indicate the violation occurred on one day--the day before Trident began renovation. The Ninth Circuit did not quarrel with the district court's policy analysis in support of advance notification; however, it stated EPA has an obligation to ensure the penalty was clearly expressed in the regulation. The burden is on the agency to clarify its regulations and the policies underlying a statute are not substitutes for clear language. Although deference is usually given to an agency's own interpretation of its regulations, the court held that in this case EPA's stance was not an official interpretation, but a position for litigation purposes.
Because the "continuous violation" penalty was not clearly applicable to Trident's actions, the Ninth Circuit determined Trident would be penalized only for a single violation. The case was reversed and remanded to the district court to impose a penalty not to exceed the statutory maximum of $25,000.
Judge Ferguson wrote the dissent. He contended the statute's plain meaning required Trident's violation to be treated as a continuing violation. Each day notice was not given, Trident disposed of asbestos improperly. Therefore, the harm was not limited to one day, resulting in a continuous violation.
