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Pacific Southwest, Region 9

Serving: Arizona, California, Hawaii, Nevada, Pacific Islands, Tribal Nations

Notice of Proposed Clean Water Act Class II Administrative Penalty Assessment and Opportunity to Comment in the Matter of Edward Lynn Brown

Comment Opens: November 18, 2014
Public Comment Closes: December 18, 2014

EPA Docket Number: CWA-09-2015-0001

Section 309(g) of the Clean Water Act (CWA), 33 U.S.C. § 1319(g), authorizes the U.S. Environmental Protection Agency to assess Class I and Class II civil penalties for CWA violations. Section 309(g)(4)(A) of the CWA, 33 U.S.C. § 1319(g)(4)(A), require the EPA to provide public notice of and a reasonable opportunity to comment on its proposed penalties. The specific procedures for conducting CWA section 309(g) penalty proceedings are further set forth in 40 C.F.R. Part 22, "Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties and the Revocation /Termination or Suspension of Permits."

The EPA Region IX hereby gives notice that it has entered into a Consent Agreement and [Proposed] Final Order (CA/FO) (14 pp, 163K, About PDF) pursuant to CWA section 309(g) for the following case:

In the Matter of Edward Lynn Brown, Oakdale, California, EPA Docket Number CWA-09-2015-0001;

Kathleen Johnson, EPA Region IX Enforcement Division Director
75 Hawthorne Street
San Francisco, CA 94105

Edward Lynn Brown
P.O. Box 1191
Empire, CA 95319

SUMMARY OF ALLEGED VIOLATIONS: The EPA alleges in the CA/FO that Respondent violated CWA section 301(a), 33 U.S.C. § 1311(a), by discharging dredged and fill material into waters of the United States without obtaining from the U.S. Army Corps of Engineers a permit issued under CWA section 404, 33 U.S.C. § 1344. Specifically, the EPA alleges that, on 10 separate days between approximately August 31 and September 12, 2012, Respondent sought to ready the land, a cattle grazing ranch in Merced, California, for planting almond trees by employing a technique known as deep ripping, which breaks up the soil using heavy mechanized equipment to drag six-foot-deep metal shanks through the ground. The operation filled and obliterated approximately 32.7 acres of vernal pool wetlands adjacent to Parkinson Creek, a tributary of the San Joaquin River that bisects the ranch.

PROPOSED PENALTY: The maximum penalty under CWA section 309(g), as adjusted by the Penalty Inflation Adjustment Rule, is $16,000 per day per violation for the period of time relevant to this action. In consideration of the penalty factors set forth in CWA section 309(g), the EPA proposes, and the Respondent agrees to pay, a Class II penalty of $160,000.00, the maximum amount available under section 309(g) for the 10 days of unpermitted discharges. Final approval of the CA/FO is subject to the requirements of 40 C.F.R. § 22.45. The CA/FO both commences and concludes this penalty proceeding.

OPPORTUNITY FOR COMMENT: Persons wishing to comment on the proposed penalty must submit written comments within thirty (30) days from the date of publication of this notice to the Regional Hearing Clerk as follows:

Steven Armsey
U.S. Environmental Protection Agency, Region IX
75 Hawthorne Street (ORC-1)
San Francisco, CA 94105
(415) 972-3919

Instructions for Submitting Comments

Please provide the following information along with your comments and submit them in accordance with Part 22: Your full name, mailing address, telephone number, email address, the Docket Number (Docket No. CWA-09-2015-0001), and a concise statement of the basis for, and relevant facts, supporting any comment for the case to which you are commenting.
Persons wishing to comment on this case, including comments on the amount or basis of the proposed penalty, are invited to submit a statement to the EPA Regional Administrator, attention of the Regional Hearing Clerk (address above), within 30 days of this public notice.

All comments received within this 30-day period will be considered prior to the issuance of the final order. See 40 C.F.R. § 22.45(b). If the 30th day of the comment period falls on a Saturday, Sunday, or federal holiday, the deadline shall be extended to the next business day. The comment should include the commenter's full name, mailing address, and email address; the case docket number; a concise statement of the basis for the comment and supporting facts; and a statement of interest in participating in the proceeding. The EPA will consider all comments received within the comment period and will not take final action prior to forty (40) days after publication of this notice.

For More Information

Persons wishing to receive a copy of 40 C.F.R. Part 22 or review the Consent Agreement and Proposed Final Order (below) may contact the Regional Hearing Clerk identified above. Please note that the federal regulations are available online at the Code of Federal Regulations (CFR) Web site. During the comment period, the public record for the proceeding may also be inspected during business hours at the office of the Regional Hearing Clerk (address above).

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