respond to EPA letters or attempts at communication. As such, she cannot now come before this court and claim that her delayed restoration, agreed to in January of 1991 and completed years later, should translate into a waiver of penalty. It is clearly not an abuse of discretion to conclude that economic sanctions were warranted.
Appellant also contends that the Administrative Law Judge and Regional Administrator failed to adequately consider the conflicting government orders received by her. Thus, appellant asserts that the government, and not her, was mostly responsible for the delay in the wetlands' restoration. Appellant overlooks the fact that the Regional Administrator did in fact weigh this element in his final determination: "there were, indeed, several gaps in the restoration effort, and each gap necessitated additional expenditures on [appellant's] part to have Mr. Phillips . . . return to the Farm for more work. Communication lapses occurred, restoration directions were misunderstood, and of course weather often interfered." Dec. at 21. The Administrator went on to add, however, that appellant "failed to recognize that the burden of moving forward to restore the wetlands was at all times on her, and not on the Corps. There is no basis for the position that she was entitled to wait for 'clear, concise, and definitive' direction from the Corps, as the record shows she did." Id.
It appears obvious that the EPA Administrator adequately considered the conflicting governmental orders prior to arriving at the penalty determination. The miscommunication between the parties was accounted for and placed alongside the other facts of the case. The Administrator correctly concluded that the onus to restore the wetlands was on the appellant, not the Corps. Taken in conjunction with the other facts of the case, it was therefore not an abuse of discretion to decide that an administrative penalty was in order.
Appellant also seeks to rely on a permit received from the York (Pa.) County Conservation District. Since this "government" permit had cleared her to replace the drain tiles, she posits, the conflicting EPA determination of a CWA violation was an abuse of discretion. This argument is incorrect. The permit appellant refers to allowed her to replace the existing drain tiles. It in no way even hinted that it was legal to breach the CWA by dumping the discarded drain tiles into a protected wetland, the violation appellant actually committed. As such, there is no conflict amongst the permit issued and the subsequent acts of the EPA.
Appellant next contends that the Administrator ignored evidence that conclusively showed none of the statutory factors listed in section 309 (g) of the CWA point to a monetary penalty. The Regional Administrator first determined that a CWA violation had occurred. Wetland vegetation had been cleared and excavated, and gravel and upland soil had been dumped illegally into the protected area. He determined that CWA violations such as this are considered "very serious."
Appellant asserts that the "run-of-the mill" nature of the act lessens its seriousness. In addition, the relatively small area of unrestored land (.89 acres) allegedly further diminishes appellant's culpability. In fact, the opposite of these two deductions is true: the accumulation of similar CWA violations, taken as a whole, point to a serious environmental problem in need of attention. The EPA sought to combat this environmental hazard by enforcing that which Congress plainly authorized it to do under the statute: protect the wetlands from illegal filling. The mere fact that the offense is common does not mean it is not punishable. Surely a monetary penalty designed to deter similar violations in the future is not an abuse of discretion.
The Regional Administrator also concluded that the "as justice may require" factor warranted consideration of the nearly four year delay in the wetland's restoration. The delay was found to be "lengthy" and "unwarranted", and as such virtually offset the fact that appellant had restored the wetlands at all. As mentioned, the Regional Administrator took note of the communication lapses and misunderstandings between appellant and the Corps. Nonetheless, he found the restoration delay to be unreasonable. Coupled with the other statutory factors weighing against the appellant, justice required the imposition of an economic sanction.
It is true that appellant had no prior history of CWA violations, had a low degree of culpability in the commitment of the illegal act,
and derived no economic benefit from the filling of the protected wetland. The Regional Administrator acknowledged all these factors in his opinion. He balanced all of these statutory considerations with the others mentioned in arriving at his conclusion. Taken as a whole, he determined that a monetary penalty was in order. Violations of a serious nature occurred. The appellant unnecessarily allowed the wetland to remain filled in direct violation of an EPA enforcement order for several years. Such considerations were weighed against the statutory factors serving to exculpate the appellant. The EPA official determined that a fine, one-fifth of that which he was authorized to impose, was in order. In no way can such a decision be considered a clear error of judgment or abuse of discretion.
Accordingly, the decision of the Regional Administrator of the EPA is hereby AFFIRMED. Appellant is hereby ordered to satisfy the $ 5,000 penalty as validly determined in the proceedings below.
Royce C. Lamberth
United States District Court Judge