Thursday, July 29, 2010

Vidiksis v. U.S. EPA

Jul 28: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 09-12544. In this Petition for Review of a Decision of the Environmental Appeals Board, the Appeals Court explains that in 2005, the U.S. EPA filed an administrative complaint against Petitioner John P. Vidiksis. The complaint alleged 69 violations of the Toxic Substances Control Act (TSCA) section 409, 15 U.S.C. § 2689; the Residential Lead-Based Paint Hazard Reduction Act of 1992, and the Federal regulations promulgated thereunder.
    An Administrative Law Judge for the EPA (ALJ) found Vidiksis liable on each of the 69 counts and assessed a civil penalty of $97,545. On appeal, the Environmental Appeals Board (EAB) affirmed the decision of the ALJ as to the liability finding and the penalty amount. Vidiksis then appealed to the Eleventh Circuit which affirmed the EAB's ruling on liability and on the penalty amount.
   The bulk of the violations were based on Vidiksis's breach of § 745.113(b)(2), requiring the lessor to state either that lead paint is present at the property, or that the lessor has "no knowledge" of the presence of any lead paint at the property. The EAB interpreted this provision to require the lessor to make "one of two affirmative statements" -- to either disclose what the lessor knows about lead-based paint in the housing or to affirmatively state that the lessor has no knowledge of the presence of lead-based paint and/or hazards in the housing. Vidiksis argues that his lead paint notice fulfilled his obligations under § 745.113(b)(2). However, Vidiksis stated only that the premises "may contain lead-based paint," and the Appeals Court said it "therefore did not comply with § 745.113(b)(2). A statement that the premises 'may contain' leadbased paint is insufficient because it does not indicate to the lessee whether the lessor has knowledge of the presence of lead-based paint or does not know one way or the other."
    On the assessed penalty, the Appeals Court said in part, "The ERP [EPA's calculation of the penalty was based on the U.S. EPA, Office of Regulatory Enforcement, Section 1018 - Disclosure Rule Enforcement Response Policy for the Lead Paint Disclosure Rule (Feb. 2000)] clearly takes it [i.e. degree of culpability] into consideration. Simply because Vidiksis disagrees with the manner in which the agency has chosen to take it into consideration does not make the agency's interpretation arbitrary or capricious."

    Access the complete opinion (click here).

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