ELR Citation: ELR 20431
No(s). s. 85-7241, -7332 (2d Cir. May 7, 1985)

In a suit brought by the state of New York under the Comprehensive Environmental Response, Compensation, and Liability Act and state nuisance law to require defendants to remove hazardous waste from their property, the court affirms the district court's finding of civil contempt against defendants for failure to comply with cleanup and discovery orders, but modifies the amount and timing of the fines imposed. After ruling that the contempt order is appealable, the court turns to the merits. The court first rules that the district court had the authority to issue discovery orders in connection with the pending contempt proceeding concerning defendants' financial ability to comply with its cleanup orders. The court next holds that the contempt citation was proper since the court orders were properly entered and there was no justification for noncompliance by defendants prior to the contempt order. However, the amount and timing of the $1,000-per-day fine imposed by the district court should be modified on remand. To the extent that the fine was imposed to coerce compliance with a cleanup order for which defendants claim that compliance is financially impossible, it must be adjusted if on remand defendants demonstrate financial impossibility.

The court urges the district court to focus on the immediate objective of removing the waste, even if apportionment of liability must be postponed. Finally, although there is considerable merit to New York's claim that it is entitled to receive the fines, not the federal government as the district court held, this issue must be resolved on remand.

[A related opinion is published at 15 ELR 20358.]

Counsel are listed at 15 ELR 20358.

Before Newman and Pierce, JJ.