ELR Citation: ELR 20297
No(s). 88-831 (D.N.J. Apr 28, 1989)

The court imposes a $142,000 civil penalty for defendant's badfaith failure to respond to Environmental Protection Agency (EPA) information requests under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Resource Conservation and Recovery Act (RCRA). Both CERCLA and RCRA provide for civil penalties per day of violation for failure to respond to an EPA information request. Defendant was in violation of EPA's CERCLA information request for 630 days (penalty up to $25,000 per day) and in violation of EPA's RCRA information request for 790 days (penalty up to $25,000 per day), for a total possible civil penalty of $35.5 million. The court considered several factors in calculating the exact civil penalty, including defendant's bad faith in failing to respond to the information requests. The court observed that EPA's ability to enter settlements with potentially responsible parties would have been severely hampered if others had failed to answer as this defendant had, thus injuring the public due to possible delays in cleaning up contaminated sites and by requiring the government to expend its funds rather than private funds. The court notes that a significant penalty will deter not only this defendant, but also others in the regulated community from treating EPA information requests as trivial matters. The court determines that a civil penalty of $100 per day of CERCLA and RCRA violation is appropriate to meet these deterrents and assesses a civil penalty of $142,000 against defendant.

[The decision on liability in this case is published at 19 ELR 20262.]

Counsel for Plaintiff
Jerome L. Merin, Ass't U.S. Attorney
Office of the U.S. Attorney
970 Broad St., 5th Fl., Newark NJ 07102
(201) 621-2700

Robert E. Maher Jr.
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 7611, Ben Franklin Station, Washington DC 20044
(202) 633-4241

Counsel for Defendant
Martin D. Katz, Joseph C. Nuzzo
Nuzzo & Katz
468 Parish Dr., Wayne NJ 07470
(201) 633-7111