A federal judge in Massachusetts has ordered defendant property owner to grant EPA immediate access to its property to conduct a removal action despite defendant’s own remedial action. U.S. v. Tucard, LLC, No. 10-11185 (D. Mass. 9/15/10). The property was formerly the site of underground storage tanks which leaked several hazardous substances including tetrachloroethylene and trichloroethylene into the soil and groundwater.

After EPA took samples on the property in 2008, the agency notified defendant that it intended to conduct a removal action at the site and requested access. Defendant declined to sign an access agreement, arguing that the proposed actions were unnecessary. EPA issued an administrative order in 2010 under CERCLA requiring unrestricted access “for the purpose of conducting response activities, including but not limited to performing the removal action.” Defendant responded saying it would not allow access until EPA conducted additional soil sampling to determine the extent of the contamination. EPA then filed a lawsuit seeking an order directing defendant to comply with the administrative order.  

The court found that EPA must satisfy only three prerequisites to gain access: (i) EPA must demonstrate that it is seeking access that is authorized under section 104(e) (3) of CERCLA; (ii) EPA must have requested access from an authorized person; and (iii) EPA must show “a reasonable basis to believe there may be a release or threat of a release of a hazardous substance or pollutant or contaminant.” According to the court, “[b]ased on the administrative record, EPA met those criteria.”