ELR Citation: ELR 20225
No(s). 96-56704 (9th Cir. Sep 24, 1998)

The court holds that a chemical company did not violate the access and entry provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) when it refused to sign a voluntary consent form providing the U.S. Environmental Protection Agency (EPA) unconditional access to its property. The court first holds that site access was provided throughout the period for which penalties are sought. With the exception of a disputed one-day incident occurring after the penalty period, EPA has provided no evidence indicating that the company physically obstructed access to the site. Nowhere in its brief does EPA suggest that the Agency or others involved with the removal action were prevented from entering onto the property, and EPA counsel acknowledged that the company never barred access to the site during the penalty period.

The court next holds that the compliance provisions of CERCLA's access and entry requirements do not authorize civil penalties for a site owner's failure to provide unconditional written consent to entry, where, as here, the facts indicate that the landowner consistently has provided physical access to the site. CERCLA §104(e) and its implementing regulations do not contain language requiring unconditional written consent in response to requests for access, entry, or inspection. Further, EPA's policy directive on entry and access is permissive rather than mandatory on the issue of consent. Although CERCLA's implementing regulations and EPA's policy directive treat the imposition of conditions as a denial of consent, the company did not place conditions on entry, but instead placed conditions on the future use of the information obtained during the cleanup process. And whether EPA may use information obtained during a cleanup as part of a future criminal prosecution does not implicate CERCLA's access and entry provisions and, therefore, is irrelevant to resolution of the present case. The court, therefore, reverses and remands the district court's decision.

Counsel for Plaintiff
John T. Stahr
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Anthony M. Glassman
Glassman, Browning & Saltsman
360 N. Bedford Dr., Ste. 204, Beverly Hills CA 90210
(310) 278-5100

Before Boochever and Kozinski, JJ.