ELR Citation: ELR 20488
No(s). CV 89-2992 (E.D.N.Y. Nov 24, 1992)

The court orders a corporate landholder and its owners to pay a $40,000 civil penalty for failure to comply with an order of the U.S. Environmental Protection Agency (EPA) directing the corporation to grant EPA access to a contaminated site to conduct remedial activities under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court finds that the penalty must create an incentive for the defendants and other potential violators to comply with future EPA orders requesting access to hazardous waste sites. Without access, EPA is unable to perform its primary function under CERCLA: the identification and cleanup of hazardous waste sites and the recovery of the government's related costs. The court notes that EPA views the denial of access to a CERCLA site as one of the most serious violations. The court further finds that the defendants deliberately violated EPA's order by refusing to allow EPA access to their facility, and that they did so despite having previously recognized EPA's authority to enter their property to conduct a remedial investigation and feasibility study. The court finds that the defendants acted in bad faith, and notes that it previously found that the conditions on the property constituted a threat to the public, including the public water supply. The court also notes that the government was forced to expend extra time and resources in this enforcement action and was delayed in fulfilling its statutory obligations under CERCLA. The court holds that for these reasons, the defendants should pay a significant penalty tailored to their ability to pay. The court finds that the defendants have significant financial resources at their disposal with which to pay a civil penalty, since the corporation has assets worth $400,000-$500,000, the corporation has approximately $95,000 in loans outstanding to its shareholders of which it could avail itself, and three members of the family owning the corporation drew salaries of between $40,000-$50,000 per year for each of the last several years. Therefore, the court awards a penalty of $2,000 for each of the 20 days the defendants unreasonably violated EPA's order. The court permanently enjoins the defendants from interfering with EPA or its designated representatives during the course of the response action at the defendants' property, grants EPA's employees or designated representatives access to the property for purposes of the response action, and requires any conveyance of the property to provide for continued access by EPA or its designated representatives to carry out the remedial activities.

[The court's prior decision granting EPA access to the site is published at 20 ELR 20529.]

Counsel for Plaintiff
Lisa M. Burianek, Special Ass't U.S. Attorney
U.S. Attorney's Office (E.D.N.Y.)
One Pier Pont Plaza, Brooklyn NY 11201
(718) 330-7000

Counsel for Defendants
Ludwig Abrozzo
Abrozzo & Clancy
120 Main St., Huntington NY 11743
(516) 549-1114