Panhandle Co-op. Ass'n, Bridgeport, Neb. v. E.P.A.

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: Before BRIGHT, Senior Circuit Judge, and ROSS, and JOHN R. GIBSON; JOHN R. GIBSON
• Citation: Panhandle Co-op. Ass'n, Bridgeport, Neb. v. E.P.A., 771 F.2d 1149 (8th Cir. 1985)
• Decision Date: 30 August 1985
• Docket Number: No. 84-2508,84-2508
• Parties: 15 Envtl. L. Rep. 20,935 PANHANDLE COOPERATIVE ASSOCIATION, BRIDGEPORT, NEBRASKA, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.

Page 1149

771 F.2d 1149

15 Envtl. L. Rep. 20,935

PANHANDLE COOPERATIVE ASSOCIATION, BRIDGEPORT, NEBRASKA, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 84-2508.

United States Court of Appeals Eighth Circuit.

Submitted May 17, 1985.

Decided Aug. 30, 1985.

Robert C. Guenzel, Lincoln, Neb., for petitioner.

Charles E. DiLeva, U.S. Dept. of Justice, Washington, D.C., for respondent.

Before BRIGHT, Senior Circuit Judge, and ROSS, and JOHN R. GIBSON, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

The Panhandle Cooperative Association appeals from an order of the Environmental Protection Agency assessing a $5,000 penalty against it for mislabeling a tank of the pesticide Telone II in violation of the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Sec. 136-136y (1982) (FIFRA). Panhandle argues that the assessment of the penalty was arbitrary, capricious and an abuse of discretion and that a two and one-half year delay in the decision of its administrative appeal violated statutory and regulatory requirements. We affirm.

A complaint was issued by EPA's Enforcement Division alleging that Panhandle had failed to attach a label to a bulk tank of Telone II and that the tank was misbranded in violation of 7 U.S.C. Secs. 136j, 136q, and 40 C.F.R. Sec. 162.10(e) (1981). The complaint alleged that the only labeling on the container was the word "Telone" and that Panhandle was holding the pesticide for sale in small quantities. A $5,000 penalty was requested.

The case was submitted to an administrative law judge on stipulations. A 4,000 gallon bulk tank containing Telone II was marked simply "Telone II." The chemical was dispensed from the tank into customers' barrels, usually fifty-five gallon drums. Each customer was given an EPA-approved specimen label. Panhandle further stipulated that the $5,000 civil penalty was properly proposed in accordance with the limit in 7 U.S.C. Sec. 136l (a)(1) (1982), although the civil penalty guidelines in 39 Fed.Reg. 27,771 (1974) would have resulted in a higher proposed penalty. ¹ The EPA was unaware of any previous violations of FIFRA by Panhandle, and after receiving the complaint, Panhandle properly labeled the bulk storage container. Panhandle had over $1,500,000 in working capital, and annual sales in the fiscal year of the violation in excess of $35,000,000. It stipulated that a $5,000 penalty would not affect its ability to continue in business.

The ALJ's order recited the contents of the stipulation, the contentions of the parties and stated the applicable law, 7 U.S.C. Sec. 136l (a)(4) (1982). This section provides:

In determining the amount of the penalty, the Administrator shall consider the appropriateness of such penalty to the size of the business of the person charged, the effect on the person's ability to continue in business, and the gravity of the violation. Whenever the Administrator finds that the violation occurred despite the exercise of due care or did not cause significant harm to health or the environment, the Administrator may issue a warning in lieu of assessing a penalty.

In addition, regulations required that the presiding officer consider the respondent's history of compliance with the Act, evidence of good faith (or lack thereof), and the agency's guidelines for assessment of civil penalties in 39 Fed.Reg. 27,711 (1974). 40 C.F.R. Sec. 22.35(c) (1981).

The ALJ observed the stipulation that the $5,000 penalty was properly assessed in terms of the size of the business and would not adversely affect Panhandle's ability to stay in business. He then stated:

As to gravity of misconduct I conclude that the violation was not of a high order but is nevertheless an admitted violation of the Act done so with the knowledge of what the law requires.

As to the gravity of harm, although no actual injury to the environment or the health of the persons has been alleged, certainly in view of the hazardous nature of the product, the potential for harm is extremely high.

R. 27. He concluded:

Apparently this pesticide is extremely dangerous when not used properly or when certain safe-guards for its handling are not observed. Under the circumstances of this case taking into consideration all the factors required by Law and regulation to be considered, I am of the opinion that the $5,000.00 penalty proposed by the Complainant is reasonable under the circumstances. In coming to that conclusion I have also taken into consideration the past history of the Respondent in complying with the Act and also with its prompt curing of the violation set forth in the Complaint by placing the required label on the 4,000 gallon storage tank.

Id. at 27-28.

On March 3, 1982, Panhandle appealed the decision to the EPA. On September 28, 1984, the Chief Judicial Officer issued a final decision that adopted the findings of fact, conclusions of law, and reasons of the ALJ. He noted that the only question resolved by the ALJ was the amount of the civil penalty to be assessed. The order set forth the applicable regulations and statutes, the contentions of the parties, and concluded with the words "I agree." The decision was not signed by the judicial officer but by someone on his behalf. ²

I.

The scope of our review is very narrow. If the order is supported by substantial evidence, it must be upheld. 7 U.S.C. Sec. 136n(b) (1982); see 5 U.S.C. Sec. 706(2)(E) (1982). The assessment of a penalty is particularly delegated to the administrative agency. Its choice of sanction is not to be overturned unless "it is unwarranted in law" or "without justification in fact." Butz v. Glover Livestock Commission Co., 411 U.S. 182, 185-86, 93 S.Ct. 1455, 1458, 36 L.Ed.2d 142 (1973). The assessment is not a factual finding but the exercise of a discretionary grant of power. Beall Construction Co. v. Occupational Safety & Health Review Commission, 507 F.2d 1041, 1046 (8th Cir.1974). The ALJ recited the proper penalty criteria. The gravity of the offense is the only matter disputed, for the size of the business and the effect of the proposed penalty were stipulated.

The ALJ carefully reviewed the stipulated facts, including the labels and photographs, in considering the gravity of the violation. Substantial evidence supports his findings and we cannot conclude that the penalty imposed was an abuse of discretion. Panhandle minimizes the seriousness of the violation by arguing that proper labels were given to the farmers purchasing the chemical. Nevertheless, the ALJ found that "the potential for harm [was] extremely high" and that when the purchasers were given the required label "it is likely that by that time it is too late to take the required precautions since during the dispensing and drum filling process both the pruchaser (sic) and the sales person are exposed to quite serious hazards presented by this pesticide." R. 25-26. Accordingly, we cannot say that the agency abused its discretion. See Aero-Master, Inc. v. United States Environmental Protection Agency, 765 F.2d 746, 747 (8th Cir.1985) (per curiam); B.L. Anderson, Inc. v. Federal Mine Safety & Health Review Commission, 668 F.2d 442, 443-44 (8th Cir.1982); Hudson Stations v. United States Environmental Protection Agency, 642 F.2d 261 (8th Cir.1981).

II.

Panhandle also argues the EPA's final action was unlawfully dilatory. EPA regulations require that "the administrator shall issue a final order as soon as practicable after the filing of all appellate briefs." 40 C.F.R. Sec. 22.31 (1984). The Administrative Procedure Act provides: "With due regard for the convenience and necessity of the parties or their representatives and within a reasonable time,...