ELR Citation: ELR 21074
No(s). B-88-0949-CA (E.D. Tex. May 4, 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