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Burke v. United States Environmental Protection Agency

January 11, 2001

PAUL M. BURKE, PLAINTIFF,
V.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION

This suit seeks injunctive and declaratory relief under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. Plaintiff Paul M. Burke ("Burke") challenges the decision of the United States Environmental Protection Agency ("EPA" or "the agency") to debar him from contracting with the federal government and from participating in federal assistance, loans, and benefit programs for a period of five (5) years. Defendant Robert F. Meuiner ("Meuiner"), EPA Suspending and Debarring Official, is sued in his official capacity only. Burke claims that EPA's debarment decision was arbitrary and capricious, an abuse of discretion, and not in accordance with law, all of which EPA denies. Before the court are the parties' cross-motions for summary judgment. Upon consideration of the parties' summary-judgment papers and the record of the case, the court concludes that Burke's motion for summary judgment should be denied and EPA's motion for summary judgment should be granted.

I. BACKGROUND

From 1989 to 1998, Burke was the president and sole shareholder of ACMAR Regional Landfill, Inc. ("ACMAR"), and the majority shareholder of Acmar Landfill, a Partnership ("the Partnership"). ACMAR and the Partnership owned and operated the ACMAR Regional Landfill ("the Landfill") located in Moody, Alabama. The Landfill accepted residential and industrial waste and bordered on the Big Black Creek, which flows into the Cahaba River, a source of drinking water for the residents of Birmingham, Alabama. In March 1990, the Alabama Department of Environmental Management ("ADEM") issued a permit to ACMAR for the disposal of solid waste within a fifty-acre, cigar-shaped parcel of land, referred to as the "cigar parcel." ADEM also issued to ACMAR a National Pollution Discharge Elimination System ("NPDES") permit, which authorized the release of storm water runoff that does not contain leachate *fn1 into the Big Black Creek.

On February 24, 1998, an information was filed in the United States District Court for the Northern District of Alabama, Middle Division, charging Burke with violating the Clean Water Act ("CWA"), 33 U.S.C. § 1319(c)(1)(a), for the negligent discharge of leachate into the Big Black Creek. The discharge occurred almost five years earlier on March 30, 1993. Burke pled guilty to violating the CWA, was fined $10,000, and was sentenced to eight months in prison, four months at a halfway house, and one year supervised release if he continued to own or work for ACMAR or the Partnership at the time of his release from custody. In addition, ACMAR pled guilty to conspiring to defraud the United States through the illegal expansion of the Landfill, the disposal of solid waste in an unpermitted area, and the defrauding of landfill clients. ACMAR was fined $1.8 million and was ordered to develop an effective environmental compliance plan. Pursuant to his plea agreement, Burke sold ACMAR to Superior Star Ridge in March 1998.

On July 16, 1998, the EPA Suspension and Debarment Division ("SDD") requested, through an Action Referral Memorandum ("ARM"), that Burke be suspended immediately, pending a proposed five-year debarment based on his conviction for violating the Clean Water Act. *fn2 Robert F. Meunier, EPA Debarring Official, issued the notice of suspension on August 4, 1998, pursuant to 40 C.F.R. Part 32, applicable to federal assistance and loan programs, and 48 C.F.R. Subpart 9.4, applicable to federal procurement. Burke timely contested the notice and requested an oral hearing, which was held on April 27, and 28, 1999.

On August 30, 1999, Meunier officially debarred Burke from participating in federal assistance, loans, and benefit programs and from contracting with the federal government for a five-year period, measured from the date of his suspension. See In the Matter of Paul Burke, EPA Case No. 98-0075-01, Aug. 30, 1999, at 15 ("Decision"). In the Decision, EPA concluded that Burke's criminal conviction provided cause for debarment and that Burke did not demonstrate sufficient mitigating factors or remedial measures showing that debarment was unnecessary. EPA also found that a five-year, as opposed to a three-year, period of debarment was warranted under the circumstances. This action followed.

Count I of the complaint alleges that EPA's Decision was arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law. Count II asserts that EPA improperly issued the notice of debarment more than five years after the events underlying the notice and, as a consequence, EPA's debarment was time barred. *fn3

II. ANALYSIS

A. Standard of Review

Judicial review of EPA's Decision is available pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. The APA provides that the reviewing court shall hold unlawful an agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). In evaluating a debarment under this standard, the court must consider the entire administrative record and determine "whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). The arbitrary and capricious standard is highly deferential and presumes the agency action to be valid. See Kisser v. Cisneros, 14 F.3d 615, 618 (D.C. Cir. 1994). It is also well established that when reviewing matters under this standard, the court may not substitute its judgment for that of the agency officials. Rather, the court's inquiry is limited to determining whether the agency examined the case facts and articulated a satisfactory explanation for its decision, including a "rational connection between the facts found and the choice made." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)).

Further clarifying the arbitrary and capricious standard, the Supreme Court in Motor Vehicle Mfrs. Ass'n noted that an agency decision:

would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Id. at 43.

Moreover, this Circuit has equated the arbitrary and capricious standard with the "substantial evidence" test: "[W]hen the arbitrary and capricious standard is performing [the] function of assuring factual support, there is no substantive difference between what it requires and what would be required by the substantial evidence test, since it is impossible to conceive of a 'non-arbitrary' factual judgment supported only by evidence that is not substantial in the APA sense. . . ." Association of Data Processing Serv. Orgs., Inc. v. Board of Governors of the Fed. Reserve Sys., 745 F.2d 677, 683-84 (D.C. Cir. 1984). See also Shane Meat Co., Inc. v. United ...


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