1995 Ninth Circuit environmental review.

• Author: Becker, Kathleen C.
• Position: Includes case summaries, 3 articles, and an index of cases and statutes

Editor Scott Kerin

Kathleen C. Becker National Environmental Policy Act, Endangered Species Act, Forests, Constitutional Challenges

David A. Christensen Clean Air Act, Water Quality, Constitutional Challenges

Karla A. Raetig Hazardous Waste, Hydroelectric Power

Holly J. Somers Hazardous Waste, National Environmental Policy Act, Endangered Species Act

Heidi Van Kirk Toxic Torts, Native American Issues

REVIEW EDITOR'S NOTE

This issue marks the sixth year of publication for the annual Ninth Circuit Environmental Review. The format of the Review follows those of previous years in presenting short summaries of every "environmental decision" handed down by the Ninth Circuit Court of Appeals in 1995, as well as individual chapters expanding upon some of the more interesting cases. The students selected for membership on the Review are chosen each year based on their writing abilities.

Because of both geography (Guam to the eastern border of Montana) and case load (the Ninth Circuit decides a substantially larger number of environmental cases than other United States Courts of Appeals), the range of environmental issues covered in the Review is expansive. This past year the Ninth Circuit grappled with the very definition of "public lands" and issues of scientific evidence on remand of the Daubert decision. The issues the students address in their individual chapters include the requirements for warrantless inspections under environmental statutes and whether parties who had interests adverse to the Endangered Species Act have standing to sue under the Act. Reviewing such a diverse and numerous group of cases was an arduous task at times, and I thank the staff of the Ninth Circuit Environmental Review, Environmental Law, as well as the faculty advisors involved for the time and effort they dedicated to this project. It is our sincere hope that the Review provides a useful research tool for those concerned with developments in environmental law.

Scott M. Kerin

Ninth Circuit Review Editor

CASE SUMMARIES

1. ENVIRONMENTAL QUALITY

   1. Clean Air Act

      1. United States v. Trident Seafoods Corp., 60 F.8d 556 (9th Cir. 1995).

      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, 19&8. 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.

   2. Hazardous Waste

      1. Hanford Downwinders Coalition, Inc. v. Dowdle, 71 F.3d 1469 (9th Cir. 1995).

         A citizens' action group, the Hanford Downwinders Coalition (HDC), filed suit asking that the Agency for Toxic Substances and Disease Registry (ATSDR) begin health surveillance testing on the population surrounding Hanford Nuclear Reservation (Hanford). The Ninth Circuit held that the ATSDR health surveillance program is within the definition of "removal action" under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and, therefore, a court challenge to the program is prohibited.

         HDC claimed CERCLA mandated the implementation of a health surveillance program in the region surrounding Hanford. ATSDR moved for summary judgment, claiming the federal courts do not have jurisdiction over challenges to "removal actions" under CERCLA. The district court granted the motion. HDC appealed, claiming the health surveillance program was not a "removal action," its action was not a "challenge," and the health surveillance program was required at Hanford. Because CERCLA section 113(h)(2) protects only discretionary actions, HDC argued, it was inapplicable. In addition, HDC argued that its suit qualified for the citizen suit exception and that its due process rights had been violated.

         Congress enacted CERCLA to facilitate cleanup of hazardous waste sites. Section 113(h) protects "removal or remedial actions" from the scope of federal jurisdiction. These actions-primarily ongoing cleanup activities-ensure cleanup efforts will not be delayed by litigation. ATSDR has the responsibility to ensure CERCLA's health-related requirements are met. The decision to implement a health surveillance program for the area surrounding a hazardous waste site is at the discretion of the ATSDR Administrator.

         The Ninth Circuit found that the plain language and purpose of CERCLA support the conclusion that ATDSR is health surveillance activities are "removal actions." "Removal actions" are those actions necessary to protect the public health from any fallout from the hazardous waste site. ATDSR's health surveillance programs are a necessary part of protecting the public health at these sites. Overall, the classification of ATSDR's health surveillance activities as "removal actions" is consistent with the remedial nature of CERCLA. Protection of the public health is one of the primary remedial goals of CERCLA.

         HDC argued that even if ATSDR authority is protected, it was :not challenging ATSDR activity. HDC's claim was for injunctive relief. However, Ninth Circuit precedent supports the notion that any lawsuit directly related to cleanup goals constitutes a challenge. HDC then argued that the ATSDR health surveillance program is mandated. The Ninth Circuit held the plain language of CERCLA indicates the ATSDR Administrator is required to initiate a health surveillance program only when there is a significant increased health risk to the population surrounding a site; therefore, determination of the existence of such risk is at the Administrator's discretion.

         Section 113(h) contains an exception for citizen suits involving actions already taken by the government. The Ninth Circuit determined ATSDR's activities at Hanford cannot be separated from the ongoing cleanup. Therefore, ATSDR's action has not yet been taken. The Ninth Circuit affirmed the district court's application of section 113(h) to HDC's suit.

         HDC then contended that application of section 113(h) violated due process. The Ninth Circuit reasoned that while it may be true this section may delay and even prevent plaintiffs from having their day in court, the court presumes Congress has balanced that factor against the need to expedite cleanup activities. The court held the best interests of the public are served by allowing CERCLA cleanups to proceed without even well-intentioned interruption. The decision of the district court was affirmed.

      2. Razore v. Tulalip Tribes of Washington, 66 F.8d 286 (9th Cir. 1995).

         Plaintiffs brought a citizen suit alleging the Tulalip Tribes violated the Resource Conservation and Recovery Act (RCRA) and the Clean Water Act (CWA). The district court dismissed the plaintiffs' claims. The Ninth Circuit affirmed and held that the suit was barred by Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) section...