Appeal Confusion on Timing of Appeals fro Decisions of EPA Appeals Board Hearing Officers

Under federal regulations an initial decision made by an EPA environmental appeals board hearing officer can be reviewed and modified by the Environmental Appeals Board for a period of 45 days after it is served upon the parties. In a bizarre ruling, the United States Court of Appeals for the Ninth Circuit has held that the initial decision must be appealed to a court within 30 days of its issuance. In B.J. Carney Industries, Inc. v. EPA, 192 F.3d 917 (9th Cir. 1999), EPA had brought an administrative complaint for civil penalties against B.J. Carney Industries ("Carney"), for violating pretreatment regulations by unlawful discharges to a publicly owned treatment works. After a hearing before an administrative law judge, Carney was assessed a penalty of $9,000. Both EPA and Carney appealed the assessment to the Environmental Appeals Board. That Board remanded the matter back to an administrative law judge to determine the amount of economic benefit Carney received by its noncompliance. A different administrative law judge recalculated the penalty and this time assessed a civil penalty of $125,000. Carney appealed that decision to the Ninth Circuit but did not file the challenge until 70 days after the issuance of the initial decision by the administrative law judge. Carney claimed that it had filed its appeal within 30 days after the order had become final because 40 C.F.R. §22.27(c) states that an initial decision becomes final 45 days after service unless an appeal is taken to the Environmental Appeal Board. The Ninth Circuit however, dismissed the appeal for lack of jurisdiction because the Clean Water Act provides that civil penalty assessments may be appealed to Federal Courts of Appeals "by filing a Notice of Appeal in such court within the 30-day period beginning on the date the civil penalty order is issued." It found that the order was issued by the administrative law judge more than 30 days prior to the appeal. This was a two to one decision by the panel. The dissenting judge stated "that the majority's contrary interpretation creates a chaotic system of judicial review that cannot have been intended by Congress." He believed that the proper interpretation of the statute and regulations was that a civil penalty assessment was not issued until the Environmental Appeals Board had issued a final order or when the time for its review had run. "This construction of a statute leave us with a virtually unprecedented system of judicial review of unfinished administrative business. As Carney points out, a violator who is subject to a $25,000 penalty might forego an appeal to the Court of Appeals, only to find that, after the 30 day appeal time to that court has run, the Environmental Appeals Board reviews the decision and quadruples the penalty."