United States v. Trident Seafoods Corporation, and Tom Stakkeland James Hinton

Opinion by Judge Skopil; Dissent by Judge Ferguson.

Trident Seafoods Corporation (“Trident”) appeals a civil penalty imposed for violating the Clean Air Act. The issue presented is whether Trident’s failure to notify officials of its intent to remove asbestos constitutes a “one-time” violation or a “continuous” violation for purposes of determining a lawful penalty. The district court concluded that Trident’s violation was continuous. We conclude that the regulation governing the notice requirement is not sufficiently clear to permit imposing a penalty greater than the statutory maximum for a single violation. We reverse and remand.

I.

Trident purchased and renovated an abandoned fish cannery in Anacortes, Washington. Asbestos was removed from the cannery site during five days in August and September 1988. A state official learned of the asbestos removal and inspected the site. Trident was cited by the state for failing to give advance notice of the company’s intent to remove asbestos, and paid a $250 fine to the state. The Environmental Protection Agency (“EPA”) was informed of the violation.

Over three years later, EPA gave notice of its intent to charge Trident with one…

dissenting:

Because the plain meaning of the statute, 42 U.S.C. § 7413 (b), requires that Trident’s failure to notify the Environmental Protection Agency (“EPA”) be assessed as a continuing violation, I dissent. The judgment of the district court should be affirmed.

Background

The defendant, Trident Seafoods Corporation, is a seafood processing corporation. In May 1988, it purchased and began renovation of an abandoned fish cannery. The renovation included removal of asbestos insulation by a subcontractor.

The asbestos removal began on August 24, 1988. The subcontractor eventually disposed of 5.21 tons of bagged asbestos at a landfill, but left at least five bags of asbestos at the facility. At the time that he removed asbestos from Trident’s facility, the asbestos removal subcontractor was not certified to remove asbestos. The subcontractor used his 11-year-old son and another person with no experience in asbestos removal to carry out the clean-up at the Trident facility. On September 26, 1988, an asbestos inspector for the Northwest Air Pollution Control Authority learned from the owner of the landfill that Trident had disposed of asbestos, and on that day he went to inspect…

60 F.3d 556 40 ERC 2121 , 64 USLW 2055 , 25 Envtl. L. Rep. 21,419, 95 Cal. Daily Op. Serv. 5394 , 95 Daily Journal D.A.R. 9193 UNITED STATES of America, Plaintiff-Appellee, v. TRIDENT SEAFOODS CORPORATION, Defendant-Appellant, and Tom Stakkeland; James Hinton, Defendants. No. 94-35178. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 4, 1995. Decided July 12, 1995. Ralph H. Palumbo, Matthew P. Bergman, Lynn M. Engel, Robert D. Nelson, Heller, Ehrman, White & McAuliffe, Seattle, WA, for defendant-appellant Trident Seafoods Corp. M. Alice Thurston, Steve Novick, Albert M. Ferlo, Jr., U.S. Dept. of Justice, Washington, DC, for plaintiff-appellee U.S. Appeal from the United States District Court for the Western District of Washington. Before: SKOPIL, FERGUSON, and THOMPSON, Circuit Judges. Opinion by Judge Skopil; Dissent by Judge Ferguson. SKOPIL, Senior Circuit Judge: 1 Trident Seafoods Corporation ("Trident") appeals a civil penalty imposed for violating the Clean Air Act. The issue presented is whether Trident's failure to notify officials of its intent to remove asbestos constitutes a "one-time" violation or a "continuous" violation for purposes of…