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UNITED STATES v. M. GENZALE PLATING

November 24, 1992

UNITED STATES OF AMERICA Plaintiff,
v.
M. GENZALE PLATING, INC., MICHAEL J. GENZALE, and PASQUALE GENZALE, Defendants.



The opinion of the court was delivered by: JACOB MISHLER

Memorandum of Decision and Order

 November 24, 1992

 MISHLER, District Judge

 BACKGROUND

 On August 3, 1989, the Environmental Protection Agency ("EPA") issued an Administrative Order (Index No. II CERCLA-90222, effective August 25, 1989) pursuant to its power under section 104 of CERCLA, 42 U.S.C. § 9604(e)(5)(A), directing that Genzale Plating, Inc. ("Genzale") comply with the EPA's request for access.

 On October 13, 1989, this Court found that the EPA's request for access to the Genzale facility was based on a reasonable belief that a release of pollutants had occurred or threatened to occur and we granted the government's motion for a preliminary injunction and access. U.S. v. Genzale Plating, Inc., 723 F. Supp. 877 (E.D.N.Y. 1989).

 On October 24, 1991, this Court granted the government's motion for partial summary judgment. The court found that the defendants had unreasonably failed to comply with the EPA's Administrative Order from August 25, 1989 until September 13, 1989, in violation of section 104(e)(5)(B) of CERCLA, 42 U.S.C. § 9604(e)(5)(B). The government now seeks civil penalties for the twenty days of noncompliance with the EPA Order as authorized by CERCLA, 42 U.S.C. § 9604(e)(5)(B)(ii). A hearing was held before the Court on October 15, 1992, to determine the amount of the civil penalty.

 DISCUSSION

 Where a defendant has unreasonably failed to comply with an EPA order issued pursuant to section 9604(e)(5)(A) of CERCLA, 42 U.S.C. § 9604(e)(5)(A), the court may assess a civil penalty not to exceed $ 25,000 for each day of non-compliance. 42 U.S.C. § 9604(e)(5)(B). The defendants, in this case, unreasonably failed to comply with an EPA order for 20 days and, therefore, are liable for civil penalties for each of the 20 days. The issue now before the court is the appropriate amount of civil penalties.

 The determination of the appropriate civil penalty is a matter within the discretion of the trial court. United States v. ITT Continental Baking Co., 420 U.S. 223, 229 n.6, 95 S. Ct. 926, 931, 43 L. Ed. 2d 148 n.6 (1975); United States v. Reader's Digest Ass'n, Inc., 662 F.2d 955, 967-968 (3d Cir. 1981). In exercising our discretion, we look first to the statute in question for guidance. In the instant case, however, 42 U.S.C. § 9604(e)(5) does not specify any factors to be considered by a court in determining a civil penalty. We therefore look for guidance by analogy to another section of CERCLA, 42 U.S.C. § 9609(3), which empowers the United States to impose civil penalties administratively. Section 9609 reads in the relevant portion as follows:

 In determining the amount of any civil penalty assessed pursuant to this subsection, the President shall take into account the nature, circumstances, extent and gravity of the violation or violations and, with respect to the violator, ability to pay, any prior history or such violations, the degree of culpability, economic benefit or savings (if any) resulting from the violation, and such other matters as justice may require.

 42 U.S.C. § 9609(a)(3).

 These factors are similar to those considered by courts in assessing civil penalties in enforcement actions in other contexts. In Reader's Digest Ass'n, the Third Circuit affirmed the District Court's consideration of the following five factors in assessing a civil penalty: (1) the good or bad faith of the defendant, (2) the injury to the public, (3) the defendant's ability to pay, (4) the desire to eliminate the benefits derived by a violation, and (5) the necessity of vindicating the authority of the enforcing party. 662 F.2d at 967-68.

 Courts have applied these five factors in determining civil penalties under CERCLA for defendant's failure to respond to EPA information requests, see, e.g., U.S. v. Barkman 784 F. Supp. 1181, 1189 (E.D.Pa. 1992); United States v. Crown Roll Leaf, Inc., 29 E.R.C. 2025, 2032 (D.N.J. 1989) and in other environmental enforcement cases. See, e.g., United States v. Vineland Chemical Co., 1990 U.S. Dist. LEXIS 8881, 31 E.R.C. 1720 (D.N.J. 1990); U.S. EPA v. Environmental Waste Control Inc., 710 F. Supp. 1172, 1242 (N.D.Ind. ...


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