United States v. Parsons

No. 4:88-cv-75-HLM (N.D. Ga. August 9, 1989)

On the government's motion for reconsideration, the court holds that six of seven defendants in a cost recovery action under the Comprehensive Environmental Response, Compensation, and Liability Act are liable for punitive damages under § 107(c)(3) for failure to comply with an Environmental Protection Agency (EPA) administrative order. The court previously denied summary judgment because the administrative order gave defendants 72 hours to respond, and it was not clear from the record that EPA waited 72 hours to begin the cleanup. The government's new evidence shows that EPA's removal action began after the 72 hour period expired. The court refuses to grant summary judgment on the punitive damage issue against one defendant, since there is a dispute concerning whether he made a good faith effort to comply with the order.

Counsel for Plaintiff
Jon Mueller
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 7611, Ben Franklin Station, Washington DC 20044
(202) 633-2000

Daniel Caldwell III, Ass't U.S. Attorney
1800 U.S. Courthouse, 75 Spring St. SW, Atlanta GA 30335
(404) 331-4216

Counsel for Defendants
William Frulla
Morgan Keegan Tower, 50 N. Front St., Memphis TN 38103
(901) 567-8000

[19 ELR 21423]

Order

The government moves the Court for an extension of time to file a motion for reconsideration of part of the Court's partial summary judgment order. For good cause shown, the time period is extended.

In the order, the Court determined that the Defendants are liable for the costs incurred by the government in cleaning up hazardous wastes but that the evidence did not support summary judgment on the government's claim for punitive damages for Defendants' failure to comply with an administrative order to clean up the wastes. The basis for the Court's decision was that the administrative order directed the Defendants to inform the EPA within 72 hours of their intent to comply therewith, and the evidence did not show that the government had waited 72 hours before cleaning up the site.

In its reconsideration motion, the government presents new evidence showing that it waited approximately seven days before beginning its clean up operations and that several of the Defendants, including Morrison, had indicated that they did not intend to comply with the order. The only Defendant who has responded to the reconsideration motion is Morrison. In a sworn statement, Morrison maintains that he was undergoing surgery when the order was issued, that he had requested a conference concerning his compliance, as permitted by the administrative order, and that he never said that he would not comply with the clean up order.

The government's new evidence shows that their operations began after the 72 hour period. The Court finds, however, that a dispute exists concerning Morrison's good faith effort to comply with the administrative order. As discussed in the Court's prior order, good faith is essential regarding the imposition of punitive damages. Summary judgment on the treble damages claim will be denied as to Morrison. However, the record shows the absence of any dispute concerning the other Defendants' conduct in failing to comply with the administrative order. On reconsideration, therefore, [19 ELR 21424] summary judgment as to those Defendants will be granted on the punitive damages claim.

ACCORDINGLY, the government's motion for an extension of time is GRANTED. Further, the government's motion to reconsider is DENIED in part and GRANTED in part: judgment on the Defendants' liability for treble damages is entered for the government against all the defendants except Defendant Morrison.

IT IS SO ORDERED, this the 8th day of August, 1989.