Condor Land Company ("Condor") has filed a demand for a jury trial in this case which arises under the Clean Water Act. 33 U.S.C. § 1251 et seq.¹ Condor cites Tull v. United States, 481 U.S. 412 (1987), and Granfinanciera v. Nordberg, 492 U.S. 33 (1989), in support of its demand. For the reasons that follow, respondent's request for a jury trial in this administrative proceeding is denied.

The United States Supreme Court's decision in Atlas Roofing Company v. Occupational Safety and Health Review Commission, 430 U.S. 442, 454 (1977), is dispositive of the jury trial question presented here. In Atlas Roofing, the Court held that the Seventh Amendment right to a jury trial does not extend to administrative proceedings.²

Condor's reliance upon Tull v. United States and Granfinanciera v. Nordberg as providing for such a jury trial is misplaced. Indeed, in Tull, supra, the Court cited its Atlas Roofing decision for the proposition that the Seventh Amendment right to a jury trial "is not applicable to administrative proceedings." 481 U.S. at 418 n. 4. Likewise, in Granfinanciera, supra, the Court observed: "In certain situations... Congress may fashion causes of action that are closely analogous to common-law claims and place them beyond the ambit of the Seventh Amendment by assigning their resolution to a forum in which jury trials are unavailable. See, e.g., Atlas Roofing,... at 450-461 (workplace safety regulations)." 492 U.S. at 52 (Court's emphasis).

In addition, the availability of a jury trial in an administrative proceeding also was addressed by the Chief Judicial Officer in Dr. Marshall C. Sasser, CWA Appeal No. 91-1, (November 21, 1991), at pp. 13-14, affd Sasser v. Administrator, EPA, 900 F.2d 127 (4th Cir. 1993). In that Clean Water Act case, the Chief Judicial Officer stated that neither Tull, nor Granfinanciera, altered the Supreme Court's holding in Atlas Roofing that the Seventh Amendment right to a jury trial is not applicable in administrative proceedings.

Accordingly, Condor Land Company's demand for a jury trial is denied.

Carl C. Charneski
Administrative Law Judge

Issued: December 5, 1996
Washington, D.C.

In the Matter of CONDOR LAND COMPANY, Respondent

Docket No. CWA-404-95-106

Certificate of Service

I certify that the foregoing ORDER, dated December 5, 1996, was sent this day in the following manner to the addressees listed below.

Original by Regular Mail to:

Ms. Julia P. Mooney
Regional Hearing Clerk
U.S. EPA, Region 4
345 Courtland Street, N.E.
Atlanta, GA 30365

Copy by Regular Mail to:

Attorney for Complainant:

Melissa A. Heath, Esquire
Assistant Regional Counsel
U.S. EPA, Region 4
345 Courtland Street, N.E.
Atlanta, GA 30365

Attorney for Respondent:

Robert M. Hustead, Esquire
70 Northwest 8th Street
Homestead, FL 33030

Marion Walzel
Legal Staff Assistant

Dated: December 5, 1996

¹ The record contains no response from complainant U.S. Environmental Protection Agency.

² The case of Atlas Roofing Company v. Occupational Safety and Health Review Commission, supra, involved an administrative civil penalty proceeding for alleged violations of the Occupational Safety and Health Act of 1970. This Clean Water Act case involves a similar regulatory enforcement scheme.