ELR Citation: ELR 20307
No(s). 92-6154 (2d Cir. Oct 29, 1992)

The court upholds a U.S. Environmental Protection Agency (EPA) administrative order imposing a $17,000 civil penalty on a company that operated wells in violation of the Safe Drinking Water Act (SDWA) and its regulations. After the company failed to respond to three notices to stop violating the SDWA or face civil penalties, EPA notified the company that it proposed to enter an order requiring the company to cease using its wells and pay a penalty for past violations. The court holds that the company's claim that the district court erroneously denied judicial review by failing to conduct an evidentiary hearing on EPA's proposed order does not entitle the company to judicial review, because EPA's final notice gave the company 30 days in which to respond to the proposed order, which the company failed to do. The court also holds that the company's mitigation efforts do not justify a reduction in the penalty. The record shows that EPA arrived at the penalty by applying its standard penalty policy assessment formula. Moreover, the penalty does not constitute an abuse of discretion, because the company left its violations uncured for a long time, and repeatedly failed to respond to EPA notices.

Counsel for Plaintiff/Appellant
Burke Probitsky
330 Vanderbilt Motor Pkwy., Ste. 201, Hauppauge NY 11788
(516) 231-0700

Counsel for Respondent/Appellee
Joseph D. McCann, Deborah B. Zwany, Ass't U.S. Attorneys
U.S. Attorney's Office
225 Cadman Plaza E., Brooklyn NY 11201
(718) 330-7000

Before Kearse, Miner, and Pollak,^* JJ.