United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER
Benson United States District Judge.
the court are Defendants' Motion for Summary Judgment,
(Dkt. No. 24, ) and Plaintiff's Cross-Motion for Partial
Summary Judgment. (Dkt. No. 26.) Pursuant to civil rule
7-1(f) of the United States District Court for the District
of Utah Rules of Practice, the Court elects to determine the
motion on the basis of the written memoranda and finds that
oral argument would not be helpful or necessary. DUCivR
Park City Mines Company (“UPCM”) was formed in
1953 and conducted mining related operations in Park City
until approximately 1969. (Compl. at ¶¶ 6, 22.) In
the mid-1980s, the Environmental Protection Agency
(“EPA”) began its investigation of the site
relevant to this action. (Id. at ¶ 22.) EPA
found that the site was contaminated with mining waste.
(Id. at ¶ 19.) EPA organized the relevant site
into four operable units (“OUs”) of concern, and
designated those OUs as OU1, OU2, OU3, and OU4. (Id.
at ¶ 17.) UPCM was an “owner or operator” of
OU1, OU2, and OU3, within the meaning of section 101(2) of
the Comprehensive Environmental Response, Compensation and
Liability Act (“CERCLA”), 42 U.S.C. §
9604(e)(2). (Id. at ¶ 20.) UPCM and Talisker
Finance, LLC (“Talisker”) are corporate
affiliates. (Id. at ¶ 10.) Each entity is a
“person” within the meaning of Section 101(21) of
CERCLA. (Id. at ¶¶ 7, 9.)
2000, EPA and UPCM entered into an Administrative Order on
Consent (“AOC”) that required UPCM to conduct a
remedial investigation and feasibility study at ¶ 1,
which UPCM completed in 2004. (Compl. at ¶¶ 24-25.)
In 2007, EPA and UPCM entered into a consent decree as to
OU1, which required UPCM, among other things, to implement
the Record of Decision issued by the EPA with respect to OU1,
and contained provisions for financial assurance.
(Id. at ¶ 27.)
2014, EPA and UPCM, along with other state and federal
agencies, entered into an AOC for OU2 and OU3. (Compl. at
¶ 28.) That Order required UPCM to implement a work plan
and a Site Characterization Report, perform an engineering
evaluation and cost analysis, and implement the removal
action selected by EPA. (Id.) It also contained
provisions for financial assurance. (Id.)
following the 2014 AOC, UPCM failed to timely and adequately
perform work and make payments required under the AOC. (Dkt.
No. 26-1 at ¶ 23.) Due to these deficiencies, EPA took
over a portion of the work under the 2014 AOC. (Id.
at ¶ 24.) EPA expects to complete the engineering
evaluation and cost analysis with respect to the sites within
the next 12-18 months. (Id.) EPA must then choose a
response action and whether to implement the response action
itself or require that action to be carried out by UPCM.
an action to enforce two requests for information issued by
EPA pursuant to Section 104(e) of CERCLA, 42 U.S.C. §
9604(e). The first information request-issued to UPCM on
January 26, 2016-seeks information about UPCM's current
and past financial position, as well as that of UPCM
affiliates. The second information request was issued on
September 12, 2016, to Talisker, and also seeks current and
past financial information.
U.S.C. § 9604(e)(2), part of CERCLA, provides in
Any officer, employee, or representative [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
(C) Information relating to the ability of a
person to pay for or to perform a cleanup.
statute further provides that this authority “may be
exercised only for the purposes of determining the need for
response, or choosing or taking any response action under
this subchapter, or otherwise enforcing the provisions of
this subchapter.” 42 U.S.C. § 9604(e)(1). CERCLA
requires the court to “direct compliance with the
requests or orders to provide such information or documents
unless under the circumstances of the case the demand for
information or documents ...