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540R90011
MODEL CERCLA 104(e) COMPLAINT
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF...
UNITED STATES OF AMERICA, )
)
Plaintiff, )
v. ) Civil Action No,
Defendant. )
COMPLAINT
Plaintiff, the United States of America, by authority of the
Attorney General and acting at the request of the Administrator
of the Environmental Protection Agency ("EPA"), alleges as
follows:
NATURE OF THE CLAIMS
1. The claims in this complaint arise under section I04(e)
of the Comprehensive Environmental Response, Compensation, and
Liability Act (hereinafter "CERCLA"), 42 U.S.C. § 9604(e), for
failure to provide information requested by EPA concerning the
identification, nature, and quantity of materials that have been
generated, stored, treated, transported to and/or disposed of at
the [FACILITY], the nature and extent of a release or threatened
release of hazardous substances at or from the [FACILITY], and
information relating to the ability of a person to pay for or
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perform the cleanup of the [FACILITY]. The complaint seeks an
injunction ordering the defendant, [NAME], to supply the
requested information and civil penalties for defendant's failure
to comply with EPA's duly authorized requests.
DEFENDANT
[USE A SEPARATE PARAGRAPH FOR EACH DEFENDANT. THE FOLLOWING
PARAGRAPHS ARE MODELS FOR THE VARIOUS TYPES OF DEFENDANTS LIKELY
TO BE ENCOUNTERED.]
2. Defendant [NAME] is a [STATE] corporation [DOING
BUSINESS OR WITH ITS PRINCIPAL PLACE OF BUSINESS] at [ADDRESS].
[ INCLUDE HERE ANY PARTICULARS RELATING TO MERGER WITH OTHER
CORPORATIONS, DISSOLUTION, OR ANY OTHER LIKE INFORMATION.]
3. The defendants [NAME] and [NAME] are the trustees of the
[NAME], a trust created by declaration of trust dated [DATE], and
recorded with the [APPROPRIATE RECORDING OFFICE] at book ,
page , with its principal place of business at [ADDRESS].
4. The defendant [NAME] is an individual who resides at
[ADDRESS].
5. The defendant [NAME] is a [STATE] [LIMITED] partnership
with its principal place of business at [ADDRESS]
JURISDICTION AND VENUE
3. This Court has jurisdiction over the subject matter of
this action and over the parties under 42 U.S.C. § 9613(b) and
U.S.C. 5§ 1331, 1345 and 1355. Venue lies in this district u:
28 U.S.C. 5 1391 and 42 H.S.C. 5 OhMtb).
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GENERAL ALLEGATIONS
4. Section 104(e)(2), 42 U.S.C. § 9604(e)(2), of CERCLA
provides, in pertinent part:
Any officer, employee, or representative [of
the President, duly designated by the President],
may require any person who has or may have
information relevant to any of the following to
furnish, upon reasonable notice, information or
documents relating to such matter:
(A) The identification, nature, and quantity
of materials which have been or are generated,
treated, stored, or disposed of at a vessel or
facility or transported to a vessel or facility;
(B) The nature or extent of a release or
threatened release of a hazardous substance or
pollutant or contaminant at or from a vessel or
facility;
(C) Information relating to the ability of a person to
pay for or to perform a cleanup.
5. [WAI-IE] is a "person" within the meaning of section
101(21) Of CERCLA, 42 U.S.C. § 9601(21).
6. [DESCRIPTION OF DEFENDANT'S INVOLVEMENT - I.E.. WHETHER
DEFENDANT WAS AN OWNER, OPERATOR, GENERATOR OR TRANSPORTER OF
HAZARDOUS SUBSTANCES, OR OTHER PERSON WHO FAILED TO COMPLY WITH
THE REQUEST, ETC. PROVIDE PARTICULARS.]
7. [DESCRIPTION OF THE SITE OR FACILITY;
STATEMENT THAT SITE IS A "FACILITY" WITHIN THE MEANING OF
SECTION 101(9) OF CERCLA, 42 U.S.C. § 9601(9).]
8. EPA has a reasonable basis to believe that there may be
a release or threat of release of a hazardous substance or
pollutant or contaminant at Mie facility, within the meaning of
section 101(22) of CERCLA, 42 U.S.C. S 9601 (.22). [PROVIDE A
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BRIEF EXPLANATION OF EPA'S KNOWLEDGE OF THE RELEASE OR THREAT OF
RELEASE.]
9. 'Oft [DATE], EPA sent [NAME OF DEFENDANT] a request
seeking information and documents, pursuant to section 10 -.e) of
CERCLA, 42 U.S.C. § 9604(e). A true and accurate copy of this
information request is attached as Exhibit A to this complaint
and is incorporated by reference.
10. The [DATE] information request was authorized by
[NAME'l , a duly designated employee and representative of the
President under CERCLA, for the purpose of enforcing CERCLA.
Authority under section 104(e), 42 U.S.C. § 9604(e), has been .
delegated to the Administrator of EPA by Executive Order No.
12580, 52 Fed. Reg. 2923 (January 29, 1987) and redelegated
pursuant to CERCLA Delegation 14-6 (September 13, 1987) [and
Regional Delegation (DATE)].
11. [NAME OF DEFENDANT] received the [DATE] - information
request on [DATE] by certified mail, return receipt requested.
Attached as Exhibit B is a true and accurate copy of the return
receipt signed by on behalf of [NAME OF DEFENDANT]
evidencing that [NAME OF DEFENDANT] received the information
request.
12. [NAME OF DEFENDANT] did not respond to the information
request and did not provide EPA with any of the information of
documents requested. [MODIFY AS APPROPRIATE. ] Reasonable
notice was given to [NAME OF DEFENDANT ] , as it was provided w»th
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30 days in which to respond to EPA's information request.
[MODIFY AS REQUIRED.]
13. [NAME OF DEFENDANT] has never submitted to EPA any
justification of its failure to respond to the information
request. [MODIFY OR DELETE AS APPROPRIATE.]
[PARAGRAPHS 14 THROUGH 16 ARE OPTIONAL.]
14. On [DATE], EPA sent a second letter to [NAME OF
DEFENDANT], care of [NAME OF ADDRESSEE], certified mail, return
receipt requested pursuant to section 104(e)(l), 42 U.S.C. §
9604(e) stating that EPA had not received [NAME OF DEFENDANT]'s
response to the information request of [DATE], and again
requesting information relating to the [SITE]. A true and
accurate copy of this letter is attached as Exhibit C to this
complaint and is incorporated by reference.
15. [NAME OF DEFENDANT] received the [DATE] reminder letter
on [DATE]. Attached as Exhibit D is a true and accurate copy of
the return receipt signed by . on behalf of [NAME OF
DEFENDANT] evidencing that [NAME OF DEFENDANT] received the
reminder letter.
16. [NAME OF DEFENDANT] did not respond to the reminder
letter and did not provide EPA with any information or documents
requested. [MODIFY AS APPROPRIATE.]
17. [INCLUDE ANY OTHER PERTINENT FACTUAL INFORMATION SUCH
AS TELEPHONE CONVERSATIONS.]
18. The purposes for which EPA sent the [DATE] information
request were to enforce the provisions of CERCLA and to assist
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in determining the need for response to the release of a
hazardous substance. [MODIFY AS APPROPRIATE.] EPA's information
request was in accordance with law and was neither arbitrary nor
capricious nor an abuse of discretion.
CLAIM FOR RELIEF
19. Paragraphs 1 through 18 are incorporated by reference.
20. Section 104(e)(5)(B), 42 U.S.C. § 9604(e)(5)(B), of
CERCLA authorizes the United States "to commence a civil action
to compel compliance with a request" for information and
documents issued pursuant to section 104(e), 42 U.S.C. § 9604(e).
21. Section 104(e)(5)(B) authorizes the Court to compel
compliance with a request for information and documents; that
section further authorizes a Court to "assess a civil penalty not
to exceed $25,000 for each day of noncompliance" with such a
request for information and documents against any person who
unreasonably fails to provide the information and documents
requested.
22. EPA's demand for information and/or documents was not
arbitrary or capricious or an abuse of discretion, and was issued
in accordance with law. [NAME OF DEFENDANT] violated section
104(e), 42 U.S.C. § 9604(e) by unreasonably failing to provide
the information- and documents requested by the [DATE] information
request.
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PRAYER FOR RELIEF
WHEREFORE, plaintiff United States of America prays for the
following relief:
1. That the Court issue an order, pursuant to section
104(e)(5) of CERCLA, 42 U.S.C. § 9604(e)(5), directing [NAME OF
DEFENDANT] to comply fully with the information request of
[DATE];
2. That the Court award the United States civil penalties
pursuant to section I04(e)(5) of CERCLA, 42 U.S.C. § 9604(e)(5),
not to exceed $25,000 for each day from [DATE of FIRST VIOLATION]
until the date when the information is finally and completely
provided;
3. That the Court award the United States its costs,
including response costs, under sections 104(b)(l) and 104(e) of
CERCLA, 42 U.S.C §§ 9604(b)(l) and 9604(e); and
4. That the Court grant such further and other relief as it
may deem appropriate.
Respectfully submitted,
Richard B. Stewart
Assistant Attorney General
Land and Natural Resources Division
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[NAME]
Attorney, Environmental Enf rcement
Section
Land and Natural Resources Division
U.S. Department of Justice
Washington, D.C. 20044
[NAME]
Assistant United States Attorney
OF COUNSEL:
[LIST NAMES OF EPA HQ AND REGIONAL ATTORNEYS]
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MODEL LITIGATION REPORT
CERCLA Section 104(e)(2) Actions
This guidance and any internal procedures adopted for its
implementation are intended solely as guidance for employees ot
the U.S. Environmental Protection Agency. Such guidance and
procedures do not constitute rule making by the Agency and may
not be relied upon to create a right or benefit, substantive or
procedural, enforceable at law or in equity, by any person. The
Agency may take action at variance with this guidance and its
internal implementing procedures.
January 12, 1990
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MODEL LITIGATION REPORT
CERCLA S£ :ion 104(6)(2) Actions
I. Cover Page
II. Table of Contents
III. Synopsis of the Case (Executive Summary)
IV. Statutory Basis of Referral
V. Description of the Site
VI. Enforcement History and Related Litigation
VII. Description of Defendant(s)
VIII. Description of Violations
IX. Anticipated Defenses
X. Relief Sought
XI. Significance of Referral/Major Issues
XII. Litigation Strategy
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[This is attorney work
product prepared in
anticipation of
litigation.]
MODEL LITIGATION REPORT
CERCLA Section I04(e)(2) Actions
I. Cover Page
A. Region, statute(s) involved and judicial district.
B. Name of defendant(s) by category (e.g. , owners,
operators, generators, transporters, or other persons
who have failed to comply with the request).
Include names, addresses and telephone numbers of
all proposed defendants in an appendix to the
litigation report. List all other § 104(e) defendants
for this site that the Region is contemplating pursuing
with addresses (where available).
C. Name, address and EPA ID Number of facility or
facilities that is/are the subject of the information
request where available.
Include name, address and telephone number (if
available) of all facilities/sites subject to the
referral.
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D. Regional contacts.
Include names, addresses and telephone numbers of
regional contacts who prepared the report.
E. Stamp date of referral on cover page.
II. Table of Contents
Include headings, subheadings and page numbers.
Ill. Synopsis of the Case (Executive Summary)
This should be a concise summary describing the site, the
status of the site in the Superfund program, enforcement history
to date, proposed defendants, particulars of the violations
(i.e.. failure to respond or inadequate response, date of
request, date of any follow up requests), significance of the
case and relief sought.
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IV. Statutory Basis of Referral
A. Applicable Statute and Elements of Proof
(1) General
.This Model Litigation report focuses on § 104(e). EPA
also has authority under RCRA § 3007 to issue and
enforce information requests. The Regions may elect to
invoke RCRA as well as'CERCLA in judicial actions to
enforce such authority.
Section 104(e) of CERCLA, 42 U.S.C. § 9604(e),
authorizes EPA to require that information be provided
to it by any person for the purposes of determining the
need for response, choosing or taking any response
action under CERCLA, or enforcing the provisions of
CERCLA (CERCLA Section 104(e)(D).
This information must relate to: (1) the identification, nature
and quantity of materials generated, treated, stored, or disposed
of at a facility or transported to a facility, (2) the nature of
extent of a release or threatened release of hazardous material
from a facility, or (3) the ability of a person to perform or
for a cleanup (CERCLA Section L04(eM2)).
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Section 104(e)(5)(B) authorizes EPA to commence a civil
action to compel compliance with a request or administrative
order, and to assess penalties.
(2) Elements of Proof
Reference should be made to the "Guidance on Use and
Enforcement of CER.CLA Information Requests and Administrative
Subpoenas" (August 25, 1988) to ensure that all proper steps have
been followed in making the information requests. (See pp. 7-
17.) This Guidance also discusses the nature of the evidence
required to support a 104(e) action, including:
1. That the information request was issued by
an authorized person (see EPA Delegation 14-6,
September 13, 1987);
2. That U.S. EPA has a "reasonable basis to
believe that there may be a release or threat of
release of a hazardous substance, pollutant or
contaminant" at a site or vessel;
3. That the information request was issued for
determining the need or a response or choosing or
taking any response action 'inder CERCLA Title I,
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or otherwise enforcing CERCLA Title I, with
respect to the site or vessel;
4. That the respondent was requested to provide
information relating to one or more of the categories
of information identified above (see. Section 104(e)(2)
(A) through (C)) ;
5. That the respondent did not fully comply with the
request or comply in a timely manner (see, pp. 18-20 of
the "Guidance on Use and Enforcement of CERCLA
Information Requests and Administrative Subpoenas"
(August 25, 1988) ).
B. Enforcement Authority; Jurisdiction and Venue
*
United States District Courts have jurisdiction to enforce
Section 104(e). See. 42 U.S.C. § 9613(b). Venue may be
determined with reference to 28 U.S.C. §§ 1391(b) and (c) and 42
U.S.C. § 9613(b).
V. Description of the Site
Include a brief discussion of the site location and site
description. Status of the NPL Listing and a general description
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of the environmental problem posed by the site should also be
included.
VI. Enforcement History and Related Litigation
Where applicable, the following information should be
discussed:
1. All contacts (written and oral) with potential
defendants pertaining to the information request.
2. Involvement (with regard to the Site) of State, local
agencies or citizens.
»
3. Related administrative or judicial actions, and
their status. (Note, however, that pre-existing
litigation is not a prerequisite for filing a 104(e)
action nor does Section I04(e) require
that information requests be issued pursuant to
a pending adjudicatory proceeding.)
VII. Description of Proposed Defendants
The following information should be included in the repor
.with respect to each proposed defendant:
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1. A brief description of the relationship of the proposed
defendant to the site. (For additional guidance, see.
"Model Litigation Report for CERCLA Sections 106 and
107 and RCRA Section 7003," June 21, 1989.)
2. State of incorporation/principal place of business.
(Include name changes and changes in corporate form.)
3. Agent for service of process. (Include name, address
and telephone number.)
4. Legal counsel, if known. (Include name, address
and telephone number.)
5. Identity of any parent or successor corporations, if
applicable and information available.
6. If defendant is a corporate officer and addressee,
discuss issues of personal liability, if any (i.e. .
corporate officers/managers' personal involvement).
7. Description and evidence of financial viability.
(Where financial viability of a potential defendant
is an issue, financial information will be
important.)
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VIII. Description of Violations
State with particularity all information requests and
follow-up letters sent to or telephone calls made to each
proposed defendant and each reply, written or oral, received from
each proposed defendant. Include copies of letters, mail
receipts and telephone/meeting records as attachments. For each
defendant, describe the nature of the violations, including:
1. Evidence supporting a prima facie case (see. elements in
IV.A.2.)
2. The number of days that defendant has been in violation.
Explain the basis for calculating that number of days
unless they are calculated from the due date of the first
request letter.
3. The number of violations for each defendant;
4. The extent and/or materiality of the omissions or
inaccuracies in any partial response;
5. Evidence of bad faith; and
6. Whether the failure to respond caused identifiable
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harm (such as delaying or impeding settlement
negotiations or enforcement actions, or withholding
information about a hazardous substance or
conditions that might be useful to EPA in making
remedial decisions);
(See. Memo from Edward E. Reich to Regional Administrators,
"CERCLA Section 104(e) Enforcement Initiative," dated September
26 , 1989. )
IX. Anticipated Defenses
Discuss any anticipated legal or equitable defenses that may
arise in connection with this action, even if they appear to lack
merit, and proposed responses to such alleged defenses. (Your
assessment of the strength of the defense should be stated in a
brief narrative.) Examples of possible defenses that may be
raised include the following:
1. Privilege claims (attorney-client, or work product
exclusion).
2. Confidentiality claims under § I04(e)(7). This is not
a proper ground for objection, since EPA will treat
as confidential any information subject to a proper
confidentiality claim (see Section 104(e>(7)).
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3. Constitutional defenses: 5th Amendment and denial of
equal protection. (Note that 104(e) does not require
that U.S. EPA seek information from all PRPs.)
4. The request for information or documents is arbitrary
and capricious, an abuse of discretion or otherwise not
in accordance with law.
5. A good faith effort was made to comply with the
information request.
6. The information requested is not relevant to the
invest igation.
This list is not intended to suggest that these defenses are
viable ones.
X. Relief Sought
Both civil penalties and injunctive relief typically will be
sought in an action filed under Sec~ion 104(e)(5)(B). Civil
penalties of up to 525,000 per day for each day of noncompliance
may be assessed by a court for failure to adequately respond to
an information request letter. The complaint should seek the
full statutory amount for each defendant. Where appropriate, •
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complaint should seek an injunction, including an order to
provide the required information. To the extent possible, the
referral should propose the appropriate relief and penalty amount
to accept in settlement and the basis for these recommendations.
XI. Significance of Refer, i/Malor Issues
Any issues of precedential significance should be raised in
this section., as well as the importance of obtaining the
information to any related litigation. For example, if
defendants' refusal to provide the information requested may
frustrate settlement discussions with other PRPs, this should be
noted.
XII. Litigation Strategy
Questions of strategy should be raised in this section,
including the proposed course of action should the defendant
comply with the information request during the pendency of the
action. Recommendations regarding the timing of filing of a
summary judgment motion, as well as settlement potential, should
also be addressed.
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