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BUXTON v. UNITED STATES EPA

April 10, 1997

ANTOINETTE BOZIEVICH BUXTON, Appellant,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Appellee.



The opinion of the court was delivered by: LAMBERTH

 This case comes before the court on appeal from a ruling made by a Regional Administrator of the Environmental Protection Agency ("EPA"), assessing a fine of $ 5,000 against appellant Antoinette Bozievich Buxton for violations of the Federal Water Pollution Prevention and Control Act (the Clean Water Act, hereinafter "CWA"). 33 U.S.C. §§ 1251-1387 (1992). The court has jurisdiction to decide this issue pursuant to section 309 (g)(8) of the CWA.

 For the following reasons, the decision of the EPA Administrator is affirmed, and appellant is hereby ordered to comply with the Administrator's penalty assessment.

 I. FACTS

 A. Chompist Farm

 Appellant purchased the expanse known as Chompist Farm in April of 1989 with the intention of converting the property into a horse farm. Shortly thereafter, she began the conversion process. Among the lands of Chompist Farm are approximately three acres of wetlands lying in a natural swale. *fn1" The wetlands are surrounded on the south and east by pastures that slope into the swale, and on the north by a barn and house. The swale itself slopes to the west, crossing a dirt access road that runs in a north to south direction.

 In order to realize the conversion to a horse farm, appellant had to remove vegetation that existed in and around the wetland swale. To accomplish this task, appellant hired Mr. George Phillips in the summer of 1990. During the course of his labor, Phillips discharged fill material into the Chompist Farm wetlands. This material included upland and wetland soils, drain tiles, dredged material from the wetland itself, and gravel beds. Filling such a wetland requires by law a permit. Neither appellant nor Phillips had a permit to fill.

 On September 28, 1990, acting upon a tip, Mr. Frank Plewa of the United States Army Corps of Engineers ("Corps") paid a visit to Chompist Farm to investigate potential CWA violations. Upon completion of his investigation, Plewa disclosed to one of Phillips' employees that he suspected CWA violations had been caused by the filling of the wetlands.

 On October 1, 1990, Plewa advised appellant Buxton to refrain from working in the potentially harmed area until further analysis could be completed. On October 19, Plewa returned to Chompist Farm and found that the discharged fill materials had in fact violated the CWA. Three days later, the Corps sent letters to both appellant and Phillips, advising them that their permitless discharges into the swale were likely violations of § 404 of the CWA.

 On January 10, 1991, given a choice between applying for an "after the fact" permit or restoring the wetlands, appellant chose the restoration alternative. Plewa agreed to and in fact proceeded to flag off the affected areas at issue. On April 29, 1991, appellant wrote to Plewa and informed him that the restoration project was complete.

 Such was not the case. While the area west of the access road had been satisfactorily restored, appellant had failed to remove fill in a portion (approximately .89 of an acre) of the remaining wetland. On May 13, 1991, appellant spoke with Plewa and agreed to complete the remaining restoration process. Some six months later, Plewa visited the polluted wetland and discovered that appellant still had not removed the fill as promised. After numerous attempts at communication failed, the Corps referred the case to the EPA.

 B. The Administrative Enforcement

 On June 24, 1992, the EPA issued an administrative order against appellant under § 309 (a) of the CWA, demanding that she complete restoration of the swale within thirty days. On April 16, 1992, appellant informed the EPA that permission for Phillips to complete the process would be given. In August of 1992, after several attempts to reach appellant by phone proved to be unsuccessful, the EPA sent a letter to appellant requesting an update. Appellant did not respond. More attempts at communication by the EPA failed.

 After confirming that the restoration process had not yet been completed, the EPA filed an administrative complaint pursuant to § 309 (g)(2) of the CWA on November 15, 1993. The complaint sought penalties for the alleged CWA violations. On December 16, 1993, appellant requested a hearing. Said hearing was conducted on October 12 and November 10 of 1994 before Regional Judicial Officer Benjamin Kalkstein. Thereafter, Kalkstein recommended that appellant be found guilty of wetlands violations, and further suggested that a Class I civil penalty of $ 5,000 be imposed. The maximum fine Kalkstein could have recommended be imposed ...


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