Friedman
Friedman v. United States Environmental Protection Agency
Opinion
Lead Opinion
MEMORANDUM **
Plaintiffs Morton Friedman and Schmitt Construction appeal the district court’s grant of summary judgment upholding the decision of the Environmental Appeals Board. The Board had found plaintiffs’ removal of asbestos from their demolition site violated the Clean Air Act, 42 U.S.C. §§ 7412 , 7414, and the National Emissions Standards for Hazardous Air Pollutants (NESHAP), 40 C.F.R. Part 61, subpart M. Plaintiffs contend that they did not have fair notice of the NESHAP regulations. We now affirm.
We review de novo the district court’s grant of summary judgment upholding agency action. See Pit River Tribe v. U.S. Forest Service, 469 F.3d 768 , 778 (9th Cir.2006). We do not afford deference to an agency’s determination that it has properly respected plaintiffs’ due process rights. As a result, we review de novo plaintiffs’ fair notice claim. See Carpenter v. Mineta, 432 F.3d 1029, 1032 (9th Cir.2005); Gilbert v. National Transp. Safety Bd., 80 F.3d 364, 367 (9th Cir.1996).
Due process requires that the EPA give “fair notice of what conduct is prohibited before a sanction can be imposed.” Newell v. Sauser, 79 F.3d 115, 117 (9th Cir.1996). Plaintiffs had fair notice of…