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United States v. United Park City Mines

United States District Court, D. Utah

July 6, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
UNITED PARK CITY MINES and TALISKER FINANCE LLC, Defendants.

          MEMORANDUM DECISION AND ORDER

          Dee Benson United States District Judge.

         Before 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 7-1(f).

         Background

         United 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.)

         In 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.)

         In 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.)

         Shortly 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. (Id.)

         This is 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.

         Discussion

         42 U.S.C. § 9604(e)(2), part of CERCLA, provides in relevant part:

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 matter:
(C) Information relating to the ability of a person to pay for or to perform a cleanup.

         The 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 ...


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