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United States v. Omega Chemical Corp.

 

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In this case, the Ninth Circuit reversed a grant of summary judgment assessing civil penalties for alleged violations of the access and entry provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).[1] The court held that because Omega Chemical Corporation (Omega) consistently allowed the Environmental Protection Agency (EPA) to enter its facility and conduct investigative activities during the period for which penalties were assessed, Omega’s refusal to sign a formal written consent giving EPA unconditional access to its facility did not constitute a violation of the statute.

Omega operated a spent solvent recycling facility in Whittier, California that became subject to an administrative investigation and response plan under CERCLA in January 1995. In April 1995, EPA requested that Omega sign a written consent form giving potentially responsible parties and EPA unconditional access to the site. EPA subsequently issued a compliance order in May 1995. Omega responded with a letter outlining its intent to comply with those portions of the order within its physical and financial ability but reserving the right to object to those portions of the order “beyond . . . the legal authority of [EPA].”[2] The letter specifically reserved the right to object to “un-consented to searches” and noted that Omega’s intended compliance with the order did not constitute a grant of consent to access or a waiver of any statutory or constitutional right.[3]

In a series of correspondence between EPA and Omega, EPA indicated that it interpreted Omega’s refusal to sign the consent form as a failure to consent to access for the removal action. In June 1995, EPA secured an administrative warrant and began removal activities at the site. EPA then initiated this action, claiming Omega’s failure to sign the consent form constituted a violation of CERCLA’s access and entry provisions. The district court granted summary judgment.[4]

The Ninth Circuit framed the question presented by this case as whether civil penalties were authorized under CERCLA for “a site owner’s failure to provide unconditional written consent to entry, where the facts indicate that the landowner consistently has provided physical access to the site.”[5] The court noted that Omega had in fact provided EPA with access to the site during the penalty period, pointing to evidence gathered by the agency itself that sufficiently demonstrated this fact. This evidence included a preliminary assessment of the site, investigation photographs, and daily and weekly site inspections, as well as soil, groundwater and drum samples. The court explained that Omega consistently allowed access to the property for EPA investigations and that there was no countervailing evidence that Omega had physically obstructed or otherwise barred EPA from entering the site.

The court next addressed EPA’s claim that failure to provide written unconditional consent constituted a violation of the statute’s access and entry provisions.[6] EPA argued that an interpretation of the statute that did not require formal written consent would not provide EPA with the certainty of access necessary to accomplish a CERCLA cleanup: a mere pledge of intent to cooperate would not protect EPA from the possibility that an owner would subsequently withdraw consent at a critical juncture in the cleanup process, thus compromising EPA’s ability to safely and effectively remove hazardous substances. The court rejected this argument, holding that neither the statute nor its implementing regulations contain language requiring unconditional written consent. The statute authorizes penalties for failure to comply with the provisions authorizing EPA to access, enter, and inspect the site.[7] The court found the most logical reading of these provisions to be that noncompliance arises from failure to allow access, entry, or inspection, but does not arise from failure to provide written consent. Because Omega had not failed to allow access to the site, the imposition of civil penalties for noncompliance was improper. The court also noted that while EPA’s policy directive on entry and access suggested that inspectors seek written consent, in the absence of that consent EPA is authorized to issue an administrative order and secure a warrant. Such procedures adequately provide EPA with the desired certainty of access.

Moreover, the court noted, EPA’s insistence that Omega sign a written consent form was “paradoxical” given the language of that form. The consent form stated that permission to enter was “voluntary with knowledge of my right to refuse.” The court took the view that consent could not be voluntary if failure to sign was grounds for imposition of a penalty: “Either the form is genuinely voluntary, in which case civil penalties should not attach, or the form is mandatory, which is a requirement that cannot be found anywhere in CERCLA or its implementing regulations.”[8]

EPA finally argued that Omega had violated CERCLA’s access and entry provisions by qualifying its willingness to cooperate on the condition that information secured by EPA would “not [be] used in the prosecution of any action against [Omega].”[9] While CERCLA itself does not speak to the imposition of conditions, both CERCLA’s implementing regulations and EPA’s policy directive treat imposition of conditions as a denial of consent. However, the court distinguished the conditions Omega sought to impose as being conditions upon the future use of information obtained during the cleanup process, not as conditions upon entry. As a result, these conditions did not implicate CERCLA’s access and entry provisions, and did not provide a basis for imposition of penalties for noncompliance.


[1] Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601-9675 (1994 & Supp. III 1997).

[2] United States v. Omega Chem. Corp., 156 F.3d 994, 995 (9th Cir. 1998) (quoting Letter from Omega Chemical Corporation to the Environmental Protection Agency and potentially responsible parties) (May 24, 1995)).

[3] Id.

[4] Id. at 994.

[5] Id. at 998.

[6] Id. at 999.

[7] 42 U.S.C. § 9604(e) (1994).

[8] 156 F.3d at 1000.

[9] Id.

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