                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             SEP 01 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 09-35740

              Plaintiff - Appellee,              D.C. No. 3:06-cv-00196-JWS

  v.
                                                 MEMORANDUM*
NANCY OLIVER, doing business as
Safety Waste Incineration; JAMES
OLIVER, doing business as Safety Waste
Incineration,

              Defendants - Appellants.


                   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


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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


                                          2
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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