United States of America v. Nancy Oliver, doing business as Safety Waste Incineration

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NANCY OLIVER, doing business as
Safety Waste Incineration; JAMES
OLIVER, doing business as Safety Waste
Incineration,
Defendants - Appellants.
No. 09-35740
D.C. No. 3:06-cv-00196-JWS
MEMORANDUM*
Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Argued and Submitted July 26, 2010
Anchorage, Alaska
Before: SCHROEDER, O’SCANNLAIN and CLIFTON, Circuit Judges.
Nancy and James Oliver appeal the district court’s grant of partial summary
judgment in favor of the United States and conclusion that they committed over
7,000 violations of the Clean Air Act (“CAA”). The Olivers also appeal the
FILED
SEP 01 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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district court’s imposition of a $75,000 civil penalty and issuance of a permanent
injunction preventing them from continuing to incinerate medical waste.
The Olivers operated an incinerator that disposes of medical and industrial
waste, but contend they did not have to comply with CAA emissions requirements
for such incinerators because they qualified for the “co-fired combustor”
exemption. 40 C.F.R. § 62.14400(a), (b)(2). A co-fired combustor is an
incinerator for which medical waste comprises less than ten-percent of the weight
of materials incinerated, including fuels. See 40 C.F.R. § 62.14490.
The district court correctly held that the Olivers did not operate a co-fired
combustor. The Environmental Protection Agency determined that the air that is
mixed with natural gas as it enters the combustion chamber is not a fuel. This
determination is not contrary to or inconsistent with the regulation defining a co-
fired combustor. See United States v. Alisal Water Corp., 431 F.3d 643, 651-52
(9th Cir. 2005). Indeed, in common English usage, air is not considered to be a
“fuel.” The Olivers’ proposed construction of the co-fired combuster exemption
would allow incinerators that dispose of exclusively medical waste to avoid CAA
emissions requirements. See id.
The district court did not abuse its discretion in imposing a $75,000 civil
penalty. The court weighed the factors required by the CAA, and imposed a much

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smaller penalty than that sought by the government due to the small size of the
Olivers’ business. See 42 U.S.C. § 7413(e)(1). The district court also did not
abuse its discretion in issuing a permanent injunction preventing the Olivers from
incinerating medical waste until they demonstrate they can do so while complying
with the CAA. See Natural Res. Def. Council v. Sw. Marine, Inc., 236 F.3d 985,
1000 (9th Cir. 2000).
AFFIRMED.

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