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U.S. v. HILL

May 30, 2000

UNITED STATES OF AMERICA, PLAINTIFF,
V.
OLIVER HILL, AND O.R. HILL FUEL CO., INC., DEFENDANT.



The opinion of the court was delivered by: Mordue, District Judge.

ORDER

The United States commenced this action pursuant to Section 7003 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 and Solid Waste Amendments of 1984 (collectively known as "RCRA"), 42 U.S.C. § 6901 et seq.

The basis for the action was a serious and destructive leak of gasoline from defendant Hill's gas station, located on the territory of the Onondaga Indian Nation. As a result of this spill, on March 3, 1995, the United States Environmental Protection Agency ("EPA") issued Hill an administrative order to, among other things, (1) post signs at and adjacent to the gas station to alert third parties to the hazards present; (2) assess the structural integrity of all underground storage tanks and associated equipment; (3) initiate the repair or closure of any tank found to be corroded or subject to structural failure; and (4) undertake an environmental investigation and complete cleanup of soils and groundwater at and adjacent to the gas station. Hill has failed to comply with any of these requirements, as far as this Court can ascertain, to the present day.

As a result, the EPA brought suit to seek Hill's statutory liability for failing to obey the order. On May 20, 1998, then District Judge Rosemary S. Pooler*fn1 granted the United States' motion for partial summary judgment on this issue. The amount of the civil penalty to which Hill was subject, however, was left for another day. After Judge Pooler's elevation, this Court referred the issue to the Honorable Gustave J. DiBianco, United States Magistrate Judge. Judge DiBianco held a hearing on January 20, 2000, at which time the government offered evidence to support its entitlement to a penalty of a sum certain. Despite failing to pay court-imposed sanctions,*fn2 Judge DiBianco allowed Hill to participate and oppose the proposed penalty.*fn3

On February 10, 2000, after hearing testimony from several government witnesses and receiving documentary evidence, the Magistrate Judge filed a Report-Recommendation ("R-R") with this Court that a civil penalty be imposed upon Hill in the amount of $4,746,500. Presently before the Court are defendant Hill's objections to the R-R. Hill objects on three grounds, all of which are lacking in merit.*fn4 Upon careful, de novo review of the entire file, including the R-R, Hill's objections, the documentary evidence and the transcript of the hearing, the Court finds the civil penalty recommended by Judge DiBianco is entirely proper.

As noted by Judge DiBianco, irrespective of which method the Court uses to calculate the fine against Hill, the factors to consider include:

(1) the seriousness of the violation;

(2) the economic benefit resulting from the violation, or failure to comply;

(3) any past history of such violations;

(4) any good faith efforts to comply;

(5) the economic impact of the penalty on the violator; and

(6) such other matters as justice may require.

See R-R at 15 (and cases cited therein); 33 U.S.C. § 1319(d).

As this Court is able to ascertain from the record and transcript, Hill's violation was grave. His spill of an estimated ten thousand gallons of gasoline posed not only a significant health risk, but risk of explosion. The source of drinking water for several families, including those with children, was left poisoned and unfit for human consumption. Despite an order from the EPA requiring him to clean up the site, and warn those near the spill, among other things, Hill has ...


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