ELR Citation: ELR 20964
No(s). 90-7313 (E.D. Pa. Jan 28, 1992)

The court holds that an illiterate landfill operator unreasonably failed to comply with U.S. Environmental Protection Agency (EPA) information requests under §104(e) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and is liable for civil penalties. The landfill operator owns the Welsh Landfill in Honey Brook, Pennsylvania, which EPA placed on the National Priorities List in 1984. In May 1989, EPA notified the operator in writing that he was potentially liable for contamination at the site, and requested information relating to hazardous substances at the site, names of individuals who might have additional information or documents, the identity of additional responsible parties, and the liability insurance coverage available to pay for cleanup. After an extension of the information request deadline, the operator submitted an inadequate and incomplete response 160 days after the extended deadline. In February 1990, EPA sent the operator a second written request for information and documents not previously provided, as well as new requests. After two deadline extensions, the operator submitted another incomplete response, and only after the United States filed suit in November 1990, approximately 717 days after the May 1989 information request was due, did the operator produce documents and information responsive to the previous information requests.

The court first holds that the government has established a prima facie case of unreasonable delay. The record shows that the operator requested and received extensions to EPA's information requests, but full compliance by the operator did not occur until after testimony was complete at the bench trial. Although 700-plus days of delay is per se unreasonable and would ordinarily trigger CERCLA's penalty provisions without further proof, the court addresses the operator's claim that the government still bears the burden of proving the unreasonable elements of his actions by investigating and disproving each of his excuses. The court holds that because there has already been a trial and no dispute exists over the facts on which the government bases its charge of unreasonability, it is the operator's responsibility to present affirmative defenses and facts to support the reasonableness of his actions.

Turning to the operator's affirmative defenses, the court holds that on balance, the operator's excuses do not render the 700-plus days of delay reasonable. First, although the operator's illiteracy is uncontested, no evidence was introduced showing any causal connection between that fact and the delay in producing the required information. The operator's lawyers read the information requests to him and fully reviewed with him related conversations and correspondence. Next, although the operator contested whether hazardous wastes were on the site, he could have responded to EPA's request for the identification of employees who had knowledge of hazardous substances by identifying the employees who worked with the substances used at the site while disclaiming that the substances were hazardous. Further, the fact that the operator's wife's accountant had been incarcerated was no defense to the operator's delay in producing income returns and financial information for 1989. However, the court holds that the operator's delay in producing the closing documents relating to the sale of a portion of the site due to their being lost in his attorney's office was not unreasonable. Finally, although EPA sought information that it already had or could easily obtain, EPA is entitled to seek relevant information from the operator.

The court next calculates that the operator was in violation of the CERCLA information request for 700 days at $55 per day, or a total civil penalty of $38,500. Although EPA does not contend that the operator acted willfully or in bad faith, facts pointing to the operator's deliberate uncooperativeness support imposition of a substantial penalty. Moreover, the injury to the public from having to spend public monies to rectify the environmental problems at the site militate in favor of a substantial penalty. Further, the operator has substantial assets to pay a substantial penalty, even if he suffers from a cash flow problem. Finally, a substantial penalty will vindicate EPA's authority.

Counsel for Plaintiff
Douglas J. Smillie
Clark, Ladner, Fortenbaugh & Young
One Commerce Sq., 2005 Market St., Philadelphia PA 19103
(215) 241-1800

Counsel for Defendant
Michael M. Baylson, Ass't U.S. Attorney
3310 U.S. Court House, 601 Market St., Philadelphia PA 19106
(215) 597-2556