ELR Citation: ELR 21193
No(s). 90-1715 (1st Cir. May 6, 1991)

The court holds that an administrative law judge (ALJ) did not act arbitrarily or capriciously in imposing a $20,000 penalty on a chemical plant that failed to immediately notify the national response center (NRC) of a hazardous substance release from its plant, as required under §103(a) of the Comprehensive Environmental Response, Compensation, and Liability Act. Within 13 hours, two fires broke out at defendant's chemical plant and released 180,000 pounds of chlorine gas into the atmosphere. NRC, notified immediately by a private citizen and the Massachusetts Department of Environmental Quality, did not receive defendant's report until months later.

In affirming the ALJ's decision, the court notes its deference to the Environmental Protection Agency's (EPA's) interpretation of the Agency's penalty regulation, and the limited judicial review that administrative remedies or sanctions are subject to. Applying the Toxic Substances Control Act (TSCA) §16 guidelines for assessing civil penalties, the court holds that EPA can assess defendant's penalty based on the inherent risk in defendant's violation without considering "fortuitous" events, such as notifications by third parties and adequate responses by other agencies. It is also irrelevant that the probability of harm after violation is not any more significant than before the violation. Finally, the court holds that the record does not show that the cleanup costs plus the penalty were "excessive" for the violation at issue, and refuses defendant's request of a lower penalty fee for having paid a large cleanup cost.

Counsel for Petitioner
David J. Martel
Doherty, Wallace, Pillsbury & Murphy
1414 Main St., 19th Fl., Springfield MA 01144
(413) 733-3111

Counsel for Respondent
Karen L. Egbert
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000
Charles Openchowski
Office of General Counsel, Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-4700

Before BREYER, Chief Judge, BOWNES, Senior Circuit Judge, and TORRUELLA, Circuit Judge.