United States v. Crown Roll Leaf, Inc.

No. 88-831 (D.N.J. October 20, 1988)

The court holds that defendant is liable under § 104(e) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and § 3007(a) of the Resource Conservation and Recovery Act (RCRA) for failure to respond to an Environmental Protection Agency (EPA) information request concerning the transportation of hazardous waste to four sites in Massachusetts and New Hampshire. The court first holds that a telephone call from defendant's counsel did not satisfy RCRA § 3007(a) and CERCLA § 104(e). Although the language of the statutes does not require written submissions, EPA's information requests ask for written responses. No reasonable recipient of such a request would believe that a telephone call would be sufficient. Further, the call was made over eight months after EPA initially contacted defendant and only after EPA had issued an administrative order. The court holds that defendant's allegation that its violations were not willful is irrelevant, since violations of RCRA and CERCLA are subject to strict liability. The court holds that defendant is liable for the conduct of its predecessor corporation. The court holds that EPA's information request was not superfluous even though EPA possessed a New Jersey state manifest indicating that defendant's predecessor had sent hazardous waste to at least one of the sites, since EPA reasonably suspected that additional information existed about the nature of the wastes and the transactions involved.

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

David Hird
Environmental Enforcement Section, Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 7611, Washington DC 20044
(202) 633-1307

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

[19 ELR 20262]

Lechner, J.:

Introduction

The Government moves for summary judgment on the issue of liability against defendant Crown Roll Leaf, Inc. ("Crown") for violations of section 3007(a) of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6927(a), and section 104(e) of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA" or "Superfund"), 42 U.S.C. § 9604(e). The Government alleges that Crown failed to provide information and documents relating to the transportation of toxic waste as was requested bythe United States Environmental Protection Agency ("EPA") pursuant to those statutory provisions.

In opposition to EPA's motion, Crown asserts that it did in fact respond to EPA's request for information ("Information Request"). Crown informed EPA it was a successor corporation to Universal Lustre Leaf, Inc. ("Universal"), the actual entity which generated the hazardous waste, and that it was having difficulty locating the information requested. Crown argues that because it ultimately had no additional information to provide EPA, this single communication constituted compliance with the request of the EPA for information.

Crown's belated response to EPA was not sufficient to constitute compliance with the statutory requirements of RCRA and CERCLA. Further, under the doctrine of corporate successor liability, Crown is liable for the acts of its predecessor, Universal. Because there is no material issue of fact regarding Crown's failure to comply with EPA's orders, summary judgment on the issue of liability is granted.

Subject matter jurisdiction musts pursuant to 28 U.S.C. §§ 1331, 1345 and 1355 and 42 U.S.C. §§ 6928 and 9613. Venue is proper pursuant to 28 U.S.C. § 1391 and 42 U.S.C. §§ 6928 and 9613.

To prevail on a motion for summary judgment, the moving party must establish "there is no genuine issue as to any material fact and that [it] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The district court's task is to determine whether disputed issues of fact exist, but the court cannot resolve factual disputes in a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). All evidence submitted must be viewed in a light most favorable to the party opposing the motion. See Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Although the summary judgment hurdle is a difficult one to overcome, it is by no means insurmountable. As the Supreme Court has stated, once the party seeking summary judgment has pointed out to the court the absence of a fact issue,

its opponent must do more than simply show that there is some metaphysical doubt as to the material facts, . . . In the language of the Rule, the non-moving party must come forward with "specific facts showing that there is a genuine issue for trial." . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial."

Matsushita, 475 U.S. at 586-87 (emphasis in original, citations omitted).

The Court elaborated in Anderson: "If the evidence [submitted by a party opposing summary judgment] is merely colorable . . . or is not significantly probative . . . summary judgment may be granted." 477 U.S. at 249-50 (citations omitted). The Supreme Court went on to note in Celotex Corp. v. Catrett, 477 U.S. 317 (1986): "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purpose." Id., 323-24 (footnote omitted). Thus, once a case has been made in support of summary judgment, the party opposing the motion has the affirmative burden of coming forward with specific facts evidencing a need for trial. See Fed. R. Civ. P. 56(e).

In other cases brought by the United States for failure to respond [19 ELR 20263] to EPA Information Requests issued under section 3007(a) of RCRA and section 104(e) of CERCLA, courts have granted motions by the Government for summary judgment. United States v. Charles George Trucking Co., 624 F. Supp. 1185, 1187 [16 ELR 20495] (D. Mass. 1986), aff'd, 823 F.2d 685 [17 ELR 21152] (1st Cir. 1987); United States v. Liviola, 605 F. Supp. 96, 98 [15 ELR 20452] (N.D. Ohio 1985). To prevail on its motion for summary judgment, the Government must show that there is no genuine issue of material fact as to the existence of Crown's liability under both statutes.¹

Facts

This case arises out of EPA's investigation and remediation of four interrelated hazardous waste sites in Massachusetts and New Hampshire. The sites are: the Cannons Engineering Corporation Site in Bridgewater, Massachusetts; the Plymouth Harbor — Cannons Engineering Corporation Site in Plymouth, Massachusetts; the Tinkham Garage Site in Londonderry, New Hampshire; and the Sylvester Site in Nashua, New Hampshire. As the Government indicates, each of these four sites were listed on EPA's National Priority List, 40 C.F.R. Part 300, Appendix B, which is the list of priority hazardous waste sites which EPA is required to establish under section 105 of CERCLA, 42 U.S.C. § 9605. Government's Brief, p. 10. During its investigation of each of these sites, EPA found releases and threatened releases of hazardous substances into the environment. Id.; Robinson Affidavit, P6. EPA learned that approximately 500 parties shipped waste to the Bridgewater site. The waste was then mixed together and transported to the other three sites. Government's Brief, p. 11.

On March 28, 1986, EPA sent letters to the over 500 potentially liable parties whom it had identified, informing them of their potential liability and, pursuant to its authority under Section 104(e)(1) of CERCLA, 42 U.S.C. § 9604(e)(1), and Section 3007(a) of RCRA, 42 U.S.C. 6927(a), requesting information and documents relating to the hazardous wastes and substances which those parties may have sent to any of the Cannons sites. Crown was among these 500 parties.² Government's Brief, p. 11.

Crown admits it received EPA's request for information. Answer, P12. According to the postal return receipt card, Crown received the Information Request on April 1, 1986. A complete response was required within thirty days of receipt, May 1, 1986. See First Set of Request for Admissions no. 14. According to EPA, Crown did not respond, nor did it provide EPA with any justification for its failure to respond.

Although Crown has not come forward with any evidence of a response, it denies EPA's charges. Vincent DiFiore ("DiFiore"), controller for Crown, is responsible for reviewing matters in the office concerning information requests. DiFiore Affidavit, P3. All legal matters are brought to his attention and he in turn consults with Crown's corporate attorney. DiFiore asserts that in the early part of September, 1986, Crown compiled "whatever information, which was mostly miscellaneous correspondence, we could locate at the Westwood facility. . . ." Id., P4. According to DiFiore, "[a] complete information gathering search was made in a good faith attempt to comply" with EPA's request and the information was forwarded to EPA on September 18, 1986. Id., PP5, 12.³ DiFiore believed that this submission was sufficient: "To the best of my knowledge, information, and belief, my actions were what was requested, and I had no idea that any other formal 'writing' was required of Crown." Id., P8.

It is not clear whether EPA received Crown's response. If it did, Crown's submission was apparently inadequate for on August 18, 1986, a reminder letter was sent to Crown explaining that EPA had not received a response to the Information Request of March 28, 1986 and EPA again requested a submission from Crown. This letter was received by Crown on August 26, but, according to EPA, Crown did not respond. Complaint, P18; See First Set of Requests for Admissions Nos. 22, 23.

In accordance with § 3008(a) of RCRA, 42 U.S.C. § 6928(a), on November 14, 1986, EPA followed up by sending an Order, an administrative complaint and a proposed Consent Agreement to Universal, in care of Robert Waitts, president of Crown. The Order demanded that Crown provide the information and documents previously requested. The proposed Consent Agreement would require Universal and Crown to submit responses to the Information Request and to pay a penalty in settlement of the Government's claims for failure to respond. The administrative complaint notified Universal and Crown they could contest liability for failure to respond to the Information Request by submitting an answer to the administrative complaint. See First Set of Requests for Admissions, Nos. 24-29 and Exhibit 5. EPA charges neither Crown nor Universal submitted any response to the November 14 communication. Complaint, P20. Crown denies this allegation. Answer, P20.⁴

In December of 1986, recognizing that its first submission to EPA was either insufficient or had never been received, counsel for Crown, Joseph Nuzzo ("Nuzzo") telephoned Jeremy Firestone ("Firestone") of EPA in an effort to resolve the situation. Nuzzo characterizes his conversation with Firestone as an "extensive discussion, . . . wherein I advised him that due to the fact that Crown was a 'successor' to the problem, there was tremendous difficulty in obtaining any information to provide in response to the request." Nuzzo Affidavit, P7 (emphasis in original). Firestone indicates that he only informed Nuzzo of his client's procedural rights and options, i.e., to request a hearing in conference or to respond to the Information Request and pay the administrative penalty for failure to comply in a timely manner. Firestone Affidavit, P3.

At the heart of the dispute between Crown and EPA is Crown's assertion that Nuzzo's telephone call to Firestone constituted the response required by RCRA and CERCLA. Crown makes much out of its apparent confusion concerning the required content of its response to EPA's Information Request. DiFiore attests he was not aware that "writing" was necessary to assure Crown's compliance. Similarly, referring to his December conversation with Firestone, Nuzzo points out that "[n]o demand for any written response was ever made by Mr. Firestone." Nuzzo Affidavit, P10.

The text of the March 28 Information Request, however, explicitly provides that a response must be made not only in writing, but also under oath:

14. To the extent that any information you provide of the facts relating to these requests is a result of your personal knowledge, or the knowledge of employees, agents, or other representatives of the respondent, the response shall be in the form of an affidavit attesting to the accuracy and completeness of the responses.

15. Return your response to the address above along with a notarized affidavit from a responsible company official or representative stating that a diligent record search has been completed and that there has been a diligent interviewing process with present and former employees who may have knowledge of the operations, chemical use, and waste disposal practices of the respondent between 1974 and the present. Also include in the affidavit a statement that any and all information responsive to this Information Request is being forwarded to EPA and that all such information is complete and accurate.

Moreover, the reminder letter of August 16, 1986, reiterated this requirement for a written response under oath, as did the cover letter [19 ELR 20264] which was sent with the administrative complaint from EPA on November 14, 1986. Government Reply Brief, pp. 9-10.

Although shortly after receiving notice of the administrative penalty Crown conducted another search, EPA was not apprised of Crown's efforts. See Response to First Set of Interrogatories, p. 12. After this action was filed on February 16, 1988, Crown went through its records again, this time with the aid of counsel and came up with more information which was submitted to EPA during discovery.⁵ Id.

EPA moves for summary judgment on the issue of liability, asserting that Crown's failure to adequately respond to EPA's Information Requests entitles the Government to judgment as a matter of law.⁶

Discussion

Crown's Arguments

Although Crown did not submit a memorandum of law in opposition to the Government's motion,⁷ it asserts four arguments against the Government's position. First, Crown refutes EPA's complaint and asserts it did comply with RCRA and CERCLA requirements. Second, Crown argues that Universal, not Crown, was actually responsible for the conduct for which EPA sought information. Third, Crown argues that because it did not willfully violate sections 3007(a) and 3008(g) of RCRA or section 104(e) of CERCLA it should not be subject to civil penalties. And finally, Crown argues it should not be held liable to EPA because EPA had in its possession a manifest previously submitted to the State of New Jersey, by Universal, which described all of the toxic transactions between Universal and Cannons Engineering Corporation.

A. Compliance with RCRA and CERCLA

Unlike the defendants in Charles George Trucking, supra, Crown does not contest the scope of EPA's Information Request. Rather, Crown arguesthat Nuzzo's December 1986 conversation was sufficient to constitute compliance under RCRA § 3007(a) and CERCLA § 104(e).

Enacted in 1976 in response to the growing number of hazardous waste sites created by unregulated waste disposal practices, RCRA requires EPA to develop regulations governing the generation, transportation, treatment, storage and disposal of hazardous wastes. H.R. Rep. No. 94-1491 Part 1, 94th Cong., 2d Sess. reprinted in 1976 U.S. Code Cong. and Admin. News 6241; Liviola, 605 F. Supp. at 98. As part of its enforcement procedures under RCRA, EPA is authorized to conduct inspections of disposal sites and waste generators as well as gather information from individuals and entities involved with hazardous wastes.⁸

CERCLA was enacted in 1980 and established a "superfund" to finance environmental improvements at hazardous waste sites. Liviola, 605 F. Supp. at 99. CERCLA also has a provision similar to RCRA which authorizes EPA to request information and documents from suspected generators of hazardous waste. 42 U.S.C. § 9604(c)(2). If EPA's Information Requests under these statutes are ignored, it may issue administrative compliance orders, seek criminal prosecution, and institute a civil action to compel compliance. 42 U.S.C. § 6928; 42 U.S.C. § 9604(e)(5)(b).

An administrative agency's request for information will be enforced where: (1) the investigation is within the agency's authority, (2) the request is not too indefinite, and (3) the information requested is relevant to legislative purposes. United States v. Powell, 379 U.S. 51, 57-58 (1964); E.E.O.C. v. A.E. Staley Mfg. Co., 711 F.2d 780, 783 (7th Cir. 1983); cert. denied, 466 U.S. 936 (1984); E.E.O.C. v. University of Pittsburgh, 643 F.2d 983, 985-86 (3d Cir.), cert. denied, 454 U.S. 880 (1981). In this case, the reasonableness of EPA's Information Request is not contested and the data it demanded from Crown are clearly consistent with the legislative scheme of both statutes.

Although the plain language of RCRA and CERCLA does not refer to written submissions, EPA's Information Requests do explicitly request written responses. Supra, p. 6. Further, it is reasonable to assume that transactions between EPA and corporations should proceed as would any business communication regarding a complex factual matter. EPA's Information Request specifically refers to RCRA and CERCLA. No reasonable recipient of such an Information Request would believe that a casual telephone communication could constitute compliance. EPA's Information Request was made in writing; a written response would seem appropriate as well as necessary to assure compliance.

Crown argues that Nuzzo's conversation with Firestone satisfied its responsibilities to EPA. But, this phone call was not even made until over eight months after EPA initially contacted Crown and Nuzzo contacted EPA only after the Agency issued Crown an administrative order. Crown offers no explanation for its belated response other than to state that it underwent "tremendous difficulty" in order to grant information about Universal's practices.⁹ Crown's liability under RCRA and CERCLA is clear.

B. Strict Liability

Crown also asserts that even if Nuzzo's conversation with Firestone and the information it claims to have forwarded to EPA on September 18 were not sufficient to constitute compliance with RCRA and CERCLA, its non-compliance was not willful and hence it should not be subject to civil penalties. This argument is also without merit for violations of both RCRA and CERCLA are subject to strict liability.

The explicit language of RCRA requires willful intent only for criminal penalties under § 6928(a) and (e). As the court in Liviola noted, had Congress desired to impose such a prerequisite for civil penalties, it would have done so. Congress modeled the civil violation provisions of RCRA after the Clean Air Act and Clean Water Act under which civil penalties are strict liability offenses.¹⁰

The language of section 104(e) of CERCLA does not require mens rea to establish a violation. In United States v. Price, 577 F. Supp. 1103, 1114 [13 ELR 20843] (D.N.J. 1983), the court specifically found that Congress intended to impose a strict liability standard for violations of CERCLA, subject only to the affirmative defenses list in § 107(b). The strict liability standard "fits most closely with the legislative aims of CERCLA which include goals such as cost-spreading and assurance that responsible parties bear their cost of the clean up. H.R. Rep. No. 1016, USCAAN 6119, 96th Cong. 2d Sess." Id.; Artesian Water Co. v. Gov. of New Castle County, 659 F. Supp. 1269, [18 ELR 20785] (D. Del. 1987) (courts have uniformly imposed strict liability in construing the terms of CERCLA); See also Note, Generator Liability Under Superfund For Clean-up of Abandoned Hazardous Waste Dumpsites, 130 U. Pa. L. Rev. 1229, 1252-58 (1983).

Crown did not contact EPA after Nuzzo's December telephone call or provide any information or documents in the 19 months that [19 ELR 20265] elapsed between Nuzzo's conversation with Firestone and EPA's filing of this action.¹¹ Not only has Crown failed to demonstrate that it made good faith efforts to comply with EPA's orders, but its alleged lack of willful violation is irrelevant under RCRA and CERCLA.

C. Successor Liability

Crown's behavior displays a disregard for the legal authority of EPA as well as its responsibilities under RCRA and CERCLA. In fact, Crown goes so far as to imply that it is not a responsible party in this proceeding. Nuzzo Affidavit, P6. ("Crown was a successor corporation to Universal Lustre Leaf, Inc., the actual entity which would have been responsible for the conduct for which the plaintiff sought information.")

In 1984, Universal, a Delaware corporation, was merged into Crown, a New Jersey corporation. Answer, P2; Requests for Admissions No. 48. The merger was accomplished under New Jersey law which provides in N.J.S.A. 14A:10-6(e) (West 1969) that following a merger: "[t]he surviving or new corporation shall be liable for all the obligations of and liabilities of each of the corporations so merged." See, First Set of Requests for Admissions No. 53. Moreover, the Plan of Merger adopted by Crown and Universal expressly provided:

Upon the effective date of merger, the separate corporate existence of UNIVERSAL LUSTRE LEAF, INC. shall cease, and CROWN ROLL LEAF, INC., the surviving corporation, shall become the owner, without other transfer, of all the rights and property of the merging corporations, and the surviving corporation shall become subject to all the debts and liabilities of the merging corporations in the same manner as if the surviving corporation had itself incurred them.

See, Requests for Admission Nos. 50-57 and Exhibit 7; Government's Brief, p. 16-17. Upon consummation of this merger, Crown acceded to Universal's obligations and liabilities, including its responsibilities for environmental accountability.

The Third Circuit has established that the doctrine of corporate successor liability applies to actions under CERCLA. Smith Land & Imp. Corp. v. Celotex Corp., 851 F.2d 86 [18 ELR 21026] (3d Cir. 1988). In Smith, a purchaser of land sued the corporate successor of a manufacturer of asbestos, seeking contribution for cleanup costs under CERCLA. Vacating the district court's summary judgment on behalf of defendant, the court held that successor liability may be imposed upon a corporation which has merged or consolidated with a corporation that is a responsible party under CERCLA. Id. In general, "when two corporations merge pursuant to statutory provisions, liability becomes the responsibility of the surviving company." Id. Quoting 15 W. Fletcher, Encyclopedia of the Law of Private Corporations § 7121, p. 185 (rev. prem. ed. 1983), the court explained,

In the case of merger of one corporation into another, where one of the corporations ceases to exist and the other corporation continues in existence, the latter corporation is liable for the debts, contracts and torts of the former, at least to the extent of the property and assets received, and this liability is often expressly imposed by statute.

Smith, 851 F.2d at 91; See also, Barnard, EPA's Policy of Successor Liability under CERCLA, 6 Stan. Envtl. L.J. 78 (1986-7); Note, Successor Corporate Liability for Improper Disposal of Hazardous Waste, 7 W. New Eng. L.R. 909 (1985).

The concerns which led to the evolution of corporate common law liability for torts of its predecessor apply with equal force to corporate responsibility under CERCLA. Smith, 851 F.2d at 91. As the Smith court explained, the economic benefits the predecessor corporation reaped from creating toxic pollutants as well as the savings resulting from the failure to use more costly non-hazardous disposal methods "inured to the original corporation, its successors, and their corporate stockholders." Id. at 92. Thus, those parties responsible under CERCLA include all current owners and operators of corporations which generate hazardous substances regardless of whether they owned or operated the facility when hazardous waste was disposed of at the site in question. Artesian Water Co., 659 F. Supp. at 1280.

The underlying policy concern of both CERCLA and RCRA is to insure that responsible corporate entities bear the burden of remedying the environmental hazards they caused which directly harm the public. In view of this policy, Crown must be held responsible for the conduct of its predecessor Universal.

D. The Universal Manifest

Crown argues that because EPA had access to a manifest prepared by Universal for the State of New Jersey, EPA's subsequent Information Request was superfluous and the entire proceeding against Crown amounts to nothing more than "an exercise in procedural gymnastics which is both wasteful and unnecessary for all parties involved." Nuzzo Affidavit, P14. EPA concedes that it had access to this manifest and explains that the manifest provided a starting point for EPA's investigation of Universal and Crown. Indeed EPA told Crown in the Information Request that it already had information linking Universal to the Cannons site, but was seeking additional information from Crown to learn about the nature of the waste sent and the number of transactions involved. Government's Reply Brief, p. 15. EPA also concedes that once the information and documents were produced, EPA did not learn about any other transactions between Universal and Cannons. But, EPA argues, this does not render its cause of action against Crown illegitimate.

The position of EPA is reasonable. If EPA suspected that additional information regarding Universal's relationship with Cannons did exist, it was proper for EPA to pursue its investigation through requests for further documentation from Crown. EPA had no way of knowing whether the manifest represented all of the Universal-Cannon transactions. As the Government explains, confirmation that there were no other transactions is important information in evaluating Crown's contribution to these hazardous waste sites. Government's Brief, pp. 15-16. Further, Crown's belated response did produce information about the nature of Crown's waste which was useful to EPA.¹² Accordingly, Universal's earlier submission of an information manifest to the State of New Jersey in no way mitigated Crown's obligation to comply with EPA's orders.

Conclusion

Because there is no material issue of fact concerning Crown's liability under section 3007(a) of RCRA and Section 104(e) of CERCLA, the Government's motion for summary judgment is granted.

SO ORDERED, this 20th day of October, 1988.

1. Fed. R.P. 56(e) states that: "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." In opposition to this motion, Crown submitted a five page affidavit of Joseph C. Nuzzo, attorney for Crown, and a two page affidavit of Vincent DiFiore, controller for Crown. Neither affidavit cites any legal authority in support of Crown's position.

2. The Information Request sent to Crown was signed by Merrill S. Hohman, Director of the Waste Management Division in EPA's Boston Office. Mr. Hohman is one of the officials of EPA, to whom the authority to issue information requests under CERCLA and RCRA has been delegated. Government's Brief, p. 11.

3. In its response to EPA's first set of interrogatories submitted as part of this action, Crown relates its efforts at compliance: "When Crown received notice in spring of 1986 of the potential liability of Universal Lustre Leaf with respect to the superfund sites in Massachusetts and New Hampshire, the former owner of the company was contacted and who [sic] gave us the name of Duke Johnson as an aid to tracking down some of the records. The initial search of the records was conducted by our controller's office. No records were found until September 1986 and some vouchers were also found. Memo from the controller's office indicates that these documents were forwarded on to the U.S. E.P.A. on September 18, 1986. Crown also paid $ 250.00 to CTG fund on May 22, 1986." Response to First Set of Interrogatories, p. 12.

4. This denial is not adequate to join issue. See Fed. R. Civ. P. 56(e) and note 1, supra.

5. On May 13, 1988, the United States served on Crown its First Set of Interrogatories and Requests for Production of Documents, which incorporated the questions asked in the EPA Information Request. Pursuant to a discovery order of June 24, 1988, by Magistrate Ronald J. Hedges, Crown provided the written information and documents requested by EPA in the Information Request on June 29, 1988. Declaration of David Hird. The United States is still seeking civil penalties for Crown's noncompliance. Government's Brief, p. 13.

The Government served two sets of Requests for Admissions on Crown on June 27 and July 25, 1988. No responses were received. Under Rule 36(a), "[t]he matter is admitted unless, within 30 days after service of the request . . . the party to whom the request is directed served upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party's attorney." The Government's Requests for Admissions are deemed admitted. See Luick v. Graybar Electric Co., 473 F.2d 1360, 1362 (8th Cir. 1973).

6. In a related action, filed in the District of Massachusetts on August 3, 1988, the Government is seeking to determine the liability of Crown and 58 other defendants for the costs of cleaning up the four Cannon sites under § 107(a) of the CERCLA, 42 U.S.C. § 9607(a). United States v. Cannons Engineering Corp., et al., No. 88-1786-WF (D. Mass.). Although this action is the essential element of EPA's efforts to remedy the damage allegedly caused by Universal, it is not relevant to the determination of Crown's liability for failure to comply with EPA's Information Requests.

7. As previously noted, Crown submitted a five page affidavit of Joseph C. Nuzzo and a two page affidavit of Vincent DiFiore, neither of which cited any legal authority in support of Crown's position.

8. Title 42 U.S.C. § 6927 provides in part:

For purposes of . . . enforcing the provisions of [RCRA], any person who generates, stores, treats, transports, disposes of, or otherwise handles or has handled hazardous wastes shall, upon request of any officer, employee or representative of the Environmental Protection Agency, duly designated by the Administrator . . . furnish information relating to such wastes and permit such person at all reasonable times to have access to, and to copy all records relating to such wastes.

9. Crown explains, "during the 4 searches that were conducted, we did not keep records of the time spent but they took the better part of the day and usually we used one or more employees." Response to First Set of Interrogatories, p. 12.

10. This court has recently held that the Clean Air Act imposes a standard of strict liability for non-compliance. United States v. Tzavah, __ F. Supp. __, Civ. Action No. 88-3647 (D.N.J. 1988); see also, U.S. v. Ben's Truck and Equipment, Inc., 25 ERC 1295, 1298 (E.D. Cal. 1986).

11. It should be noted that Crown never asked EPA for clarification of its compliance responsibilities, even though the Information Requests invited recipients to call EPA with questions. Government's Brief, p. 14. Nor did Crown request an extension from EPA when it was confronted with "extreme difficulty" in gathering the requested information. When Crown finally contacted EPA in December, its responses were seven months late and it had already received two follow up notices. Even then, Nuzzo called only to say that Crown was still searching out the appropriate information. Id.

12. "Prior to receiving Crown's response, the documents in EPA's possession indicated that Universal had sent 'solvent residues' to the Cannons site in Bridgewater, Massachusetts, but did not identify which solvent residues were sent. The documents produced by Crown include a Waste Product Survey, Exhibit 11 to the United States' Second Set of Requests for Admissions, which identified Universal's waste as containing five hazardous wastes and hazardous substances; ethyl acetate, methyl ethyl ketone, methyl isobutyl ketone, toluene and xylene. This information confirmed that Universal's waste was hazardous and contained substances which had been found in the environment at least one of the Cannon sites. (United States' Second Set of Requests for Admissions no. 5-15.)" Government's Reply Brief, p. 16.