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United States v. Yetim

United States District Court, E.D. New York

April 20, 2017

United States of America, Plaintiff,
Nedjet Yetim, et al., Defendants.

          The government is represented by Kenneth M. Abell, Assistant United States Attorney, of the United States Attorney's Office for the Eastern District of New York

          Defendants Nedjet Yetim, ASLI & Gizem Realty Corp., and Target Petroleum, Inc. are represented by Darrell J. Conway of Darrell J. Conway


          JOSEPH F. BIANCO United States District Judge

         Plaintiff the United States of America (the “government”) filed a complaint on February 7, 2014 alleging violations of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6991e, and its implementing regulations by two individual defendants-Nedjet Yetim (“Yetim”) and his daughter Rachelann Yetim-and several corporate entities. (ECF No. 1.) The government has now moved for partial summary judgment pursuant to Federal Rule of Civil Procedure 56 against Yetim and his companies ASLI & Gizem Realty Corp. (“ASLI”) and Target Petroleum, Inc. (“Target”) (collectively, “defendants”).[1]

         Specifically, the government seeks an award of monetary damages and injunctive relief against defendants in connection with RCRA violations concerning underground petroleum storage tanks at a gasoline station located at 1278 Hempstead Turnpike, Elmont, New York (the “1278 Facility”). In response, defendants do not dispute the violations alleged by the government; instead, they argue that (1) the $850, 300 penalty sought by the government is excessive and unduly punitive, and (2) an injunction requiring defendant Yetim to comply with RCRA and its regulations is unnecessary because he is no longer in the business of operating gasoline stations.

         For the reasons set forth below, the government's motion for partial summary judgment is granted as to liability, and the Court enjoins defendants from future violations of RCRA and the regulations promulgated thereunder. However, the Court believes an evidentiary hearing is necessary to determine an appropriate monetary penalty against defendants.

         I. Background

         A. Facts

         The following facts are taken from the parties' Rule 56.1 statements (“Govt.'s 56.1, ” ECF No. 54; “Defs.' 56.1, ” ECF No. 56), as well as the parties' affidavits and exhibits. Unless otherwise noted, the facts are either undisputed or uncontroverted by admissible evidence. Because defendants do not dispute that they committed the RCRA violations at issue, the Court will summarize only those facts that pertain to the relief sought by the government. Upon consideration of the motion for partial summary judgment, the Court will construe the facts in the light most favorable to defendants as the nonmoving party, and it will resolve all factual ambiguities in their favor. See Capobianco v. New York, 422 F.3d 47, 50 n.1 (2d Cir. 2001).

         1. Yetim's History

         Defendant Yetim has been involved in some capacity with approximately 150 gasoline stations and has owned three or four stations at various points in time, but he has never had any training relating to underground petroleum storage tanks (“USTs”) or their relevant regulations. (Govt.'s 56.1 ¶ 4.) Over the years, Yetim has set up approximately twenty different corporations to own or operate the gasoline stations with which he has been involved, including defendants ASLI and Target. (Id. ¶¶ 5-7.)

         Yetim has been arrested several times in connection with his ownership or operation of gasoline stations on Long Island, and he spent three years in prison on a New York state grand larceny charge relating to his gasoline station business. (Id. ¶ 2.) He was also convicted of endangering the public welfare due to a UST that was leaking petroleum into the ground at a gasoline station that he owned. (Id. ¶ 3.) Specifically, in or around October 2009, the Nassau County District Attorney's Office charged Yetim with Endangering Public Health, Safety or the Environment in the Third Degree and Knowingly Violating a Final Administrative Order, both felonies, in connection with his ownership and operation of a gasoline station at 653 Hempstead Turnpike. (Id. ¶ 24.) Yetim and one of his corporate entities ultimately pled guilty in that matter. (Id. ¶ 28.)

         2. The 1278 Facility

         For many years, Yetim-individually and through his various corporate entities-was the owner and operator of UST systems at the 1278 Facility until the end of 2013. (Id. ¶ 8.) The 1278 Facility is a gasoline station and maintenance center located within the boundaries of a federally-designated Sole Source Aquifer, which supplies at least fifty percent of the drinking water consumed within the aquifer's boundaries. (Id. ¶ 16.) From at least 1999 to 2013, Yetim managed, directed, or conducted decisions about environmental compliance at the 1278 Facility, and during that time, he was the primary point of contact for the New York State Department of Environmental Conservation (“NYSDEC”) and the United States Environmental Protection Agency (the “EPA”) regarding day-to-day operations at the 1278 Facility. (Id. ¶¶ 17-18.)

         Prior to the summer of 2011, the 1278 Facility had three active, 4, 000-gallon USTs. (Id. ¶ 23.) Since 1999, there have been at least eight reported petroleum releases from the USTs at the 1278 Facility, one of which resulted in NYSDEC installing a groundwater remediation system. (Id. ¶ 19.) With respect to one of those releases, NYSDEC informed Yetim that there had been a leak from a UST at the 1278 Facility and that he was required to clean up the property. (Id. ¶ 20.) He responded that he did not have the money to do so, and as a result, NYSDEC entered the property and cleaned the spill. (Id. ¶ 21.)

         From at least 2009 until 2013, EPA personnel repeatedly informed Yetim about regulatory violations concerning USTs at the 1278 Facility, but he failed to remedy them. (Id. ¶ 30.) Specifically, the EPA conducted three separate inspections of the 1278 Facility on July 8, 2009; July 27, 2011; and January 31, 2013. (Id. ¶ 31.) During the initial inspection in July 2009, EPA Environmental Engineer Paul Sacker (“Sacker”) observed corrosion on fiberglass-reinforced plastic piping connected to some metallic components, indicating that the metallic piping components had not been upgraded with adequate cathodic protection as required by regulation. (Id. ¶ 32.) Sacker also noted that the regular fill pipe in one of the USTs had no overfill protection and that the 1278 Facility did not employ adequate methods to detect the release of petroleum from its USTs, safeguards that were also legally-mandated. (Id. ¶¶ 33-35.) Sacker then spoke with Yetim regarding those regulatory infractions, but Yetim was hostile and refused to answer any of his questions. (Id. ¶ 36.)

         On September 8, 2009, the EPA sent Yetim an Information Request Letter (“IRL”) identifying the UST regulatory violations observed during the July 8, 2009 inspection and seeking information about the owners and operators of the USTs; the overfill, spill, and cathodic protections for the USTs; release detection for the USTs and the underground piping; and information on any USTs that may have been closed. (Id. ¶ 37.) After multiple attempts at delivery to Yetim's business addresses, Yetim eventually accepted the IRL at his home address on December 9, 2009, but he thereafter told the EPA that he had lost the IRL and requested another copy. (Id. ¶¶ 38-39.) On December 22, 2009, the EPA sent a more comprehensive IRL, which requested similar information about the 1278 Facility, as well as three other facilities that Yetim was believed to own and/or operate. (Id. ¶ 39.) Nevertheless, Yetim rejected delivery of the December 22, 2009 IRL several times, ultimately accepting a copy of a further revised IRL on or around June 8, 2010. (Id. ΒΆ 40.) On July 6, 2010, Yetim submitted ...

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