United States v. United Park City Mines Company ( 2020 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 16, 2020
TENTH CIRCUIT Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-4110
(D.C. No. 2:17-CV-00482-DB)
UNITED PARK CITY MINES (D. Utah)
COMPANY; TALISKER FINANCE
LLC,
Defendants - Appellants.
ORDER AND JUDGMENT *
Before LUCERO, HOLMES, and MORITZ, Circuit Judges.
Defendants-Appellants United Park City Mines Company (“UPCM”) and
Talisker Finance LLC (“Talisker”) appeal from the district court’s order denying
their motion for summary judgment, granting plaintiff-appellant United States’s
motion for partial summary judgment, and directing UPCM and Talisker to
comply with the information requests issued by the Environmental Protection
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent Federal Rule of Appellate Procedure
32.1 and 10th Circuit Rule 32.1.
Agency (“EPA”) pursuant to 42 U.S.C. § 9604(e). Exercising jurisdiction under
28 U.S.C. § 1292(a)(1), we affirm the district court’s order.
I
A
The Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 (“CERCLA”), 42 U.S.C. §§ 9601–75, “grants the President broad
power to command government agencies and private parties to clean up hazardous
waste sites.” United States v. Bestfoods, 524 U.S. 51, 55 (1998) (quoting Key
Tronic Corp. v. United States, 511 U.S. 809, 814 (1994)). The statute was
“designed to promote the ‘“timely cleanup of hazardous waste sites”’ and to
ensure that the costs of such cleanup efforts were borne by those responsible for
the contamination.” Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S.
599, 602 (2009) (quoting Consol. Edison Co. of N.Y. v. UGI Util., Inc., 423 F.3d
90, 94 (2d Cir. 2005)).
To achieve this goal, the statute authorizes the federal government to wield
several broad and varied powers. For example, the President may “enter into an
agreement with any person (including the owner or operator of the facility from
which a release or substantial threat of release emanates, or any other potentially
responsible person), to perform any response action . . . if the President
2
determines that such action will be done properly by such person.” 1 42 U.S.C.
§ 9622(a). CERCLA also authorizes the President to direct federal agencies to
undertake certain investigative actions. Federal officials may seek to obtain
information “for the purposes of determining the need for response, or choosing
or taking any response action under [CERCLA], or otherwise enforcing the
provisions of [CERCLA].” Id. § 9604(e)(1). Under CERCLA, the President and
duly designated representatives, including the EPA, 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.
Id. § 9604(e)(2). Here, “person” includes corporations and other business
organizations. Id. § 9601(21).
If “consent is not granted” with respect to such information requests, the
district court, upon the filing of a civil action by the government, may “direct
compliance with the requests . . . to provide such information or documents unless
under the circumstances of the case the demand for information or documents is
1
A “response” or “response action” is a term of art in CERCLA that
“covers a broad array of cleanup activities.” Asarco LLC v. Atl. Richfield Co.,
866 F.3d 1108, 1116 (9th Cir. 2017).
3
arbitrary and capricious, an abuse of discretion, and otherwise not in accordance
with law.” Id. § 9604(e)(5)(A), (B)(ii).
B
In the mid-1980s, the EPA began investigating the Richardson Flat Tailings
Site, an area contaminated with hazardous substances that is downstream from
UPCM’s former operations near Park City, Utah. To evaluate options to clean up
the site, the EPA divided the location into four different “operable units”
(“OUs”), and indicated that UPCM could be potentially responsible for cleanup
efforts at OU1, OU2, and OU3 (but not OU4).
In 2000, the EPA and UPCM entered into an administrative order on
consent (“2000 AOC”), which required UPCM to conduct a remedial investigation
and feasibility study for OU1. UPCM completed that study in 2004. In 2007, the
EPA and UPCM entered into a consent decree requiring UPCM to implement a
remedial action that the EPA selected for OU1 and to pay the EPA’s future
response costs for OU1. The parties dispute whether the remedy for OU1 remains
unfinished.
In 2014, the EPA and UPCM entered into an administrative order on
consent for OU2 and OU3 (“2014 AOC”). That agreement requires UPCM to
perform an engineering evaluation and cost analysis (“EE/CA”), implement the
4
response actions the EPA selects for the units, and pay the EPA’s future response
costs. The EPA later took over the EE/CA, alleging that UPCM was failing to
timely and adequately perform its work and make its payments as required by the
2014 AOC.
In 2014, Talisker Finance, LLC (“Talisker”) defaulted on a loan to a third
party for which UPCM had pledged collateral. The lender thereafter initiated a
foreclosure action and acquired some UPCM properties. Significantly, in 2003,
UPCM was acquired by a company that was allegedly affiliated with Talisker.
In January 2016, the EPA sent UPCM a letter pursuant to 42 U.S.C.
§ 9604(e) requesting information about UPCM’s financial and corporate history,
including information relating to UPCM’s acquisition in 2003 and any transfers of
assets or liabilities between UPCM and Talisker. UPCM did not respond to some
of these requests—specifically, the ones that related to its ties with Talisker—on
the grounds that the requests were outside the scope of § 9604(e).
In September 2016, the EPA sent a letter to Talisker pursuant to § 9604(e)
requesting information about, among other things, Talisker’s corporate history
and its affiliated companies. Talisker objected to the request—specifically as it
related to providing a list of affiliated companies—again, on the grounds that the
request was outside the scope of § 9604(e).
5
In May 2017, the government filed a complaint against UPCM and Talisker
(“the Defendants”) seeking to enforce the EPA’s information requests. The
complaint alleged that both information requests relate to UPCM’s ability “to pay
for or to perform a cleanup” at OU2 and OU3. 42 U.S.C. § 9604(e)(2)(C).
Defendants filed a motion for summary judgment, and the government in turn
filed a cross-motion for partial summary judgment.
In June 2018, the district court issued an order denying summary judgment
to the Defendants, granting partial summary judgment to the government, and
ordering the Defendants “to comply with the requests for information issued by
EPA.” Aplts.’ App., Vol. XII, at 704 (Mem. Decision & Order, filed July 9,
2018). The Defendants timely appealed.
II
On appeal, the Defendants raise four arguments: (1) the EPA acted beyond
the scope of its statutory authority when it issued the 2016 information requests;
(2) the information requests are not reasonably relevant to the legislative purposes
of CERCLA, as required by the Fourth Amendment; (3) the district court erred by
enjoining Defendants to answer all of the EPA’s information requests, even
though Defendants had already answered most of them; and (4) the injunction
ordering the Defendants to answer the information requests violates Rule 65(d) of
the Federal Rules of Civil Procedure.
6
We first address the standard of review, which is disputed. We then
address, and reject, each of the Defendants’ arguments.
A
The parties disagree on the proper standard of review. The dispute arises
from the dual nature of the district court’s order—that is, a resolution of cross-
motions for summary judgment and an injunction premised on that resolution.
The government argues that we should review the district court’s order for abuse
of discretion because it is an injunction. See, e.g., John Allan Co. v. Craig Allen
Co. L.L.C., 540 F.3d 1133, 1142 (10th Cir. 2008) (“We review a district court’s
decision to issue or deny a permanent injunction for an abuse of discretion.”).
The Defendants, on the other hand, contend that, “[i]n an appeal from summary
judgment enforcement of agency information demands, this Court applies a de
novo standard of review.” Aplts.’ Reply Br. at 1.
In scenarios such as this, the dual nature of a district court’s order actually
may implicate both standards of review. As we have explained before, “[w]hile
we typically review a district court’s grant of an injunction for abuse of
discretion, we review de novo a summary judgment which serves as a basis for an
injunction.” EagleMed LLC v. Cox, 868 F.3d 893, 899 (10th Cir. 2017) (quoting
United States v. Hartshorn, 751 F.3d 1194, 1198 (10th Cir. 2014)). Our de novo
summary judgment review “requires us to examine the evidence in the light most
7
favorable to the nonmoving party to ascertain (1) whether any genuine issues of
material fact exist and (2) whether the district court correctly applied the relevant
substantive law.” Sierra Club v. Lujan, 972 F.2d 312, 314 (10th Cir. 1992);
accord Morrison Enters. v. McShares, Inc., 302 F.3d 1127, 1133 (10th Cir. 2002).
“After reviewing the legal issues involved in the entry of summary
judgment de novo, ‘we review the district court’s grant or denial of a permanent
injunction for abuse of discretion.’” EagleMed, 868 F.3d at 899 (quoting S.E.C.
v. Pros Int’l, Inc., 994 F.2d 767, 769 (10th Cir. 1993)). An abuse of discretion
stems from the exercise of “an arbitrary, capricious, whimsical, or manifestly
unreasonable judgment.” Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th
Cir. 2005) (quoting Coletti v. Cudd Pressure Control, 165 F.3d 767, 777 (10th
Cir. 1999)). Yet, notably, the abuse-of-discretion standard of review “implies no
single level of scrutiny by the appellate courts.” Harry T. Edwards & Linda A.
Elliott, F EDERAL S TANDARDS OF R EVIEW : R EVIEW OF D ISTRICT C OURT D ECISIONS
AND A GENCY A CTIONS , Ch. V(A), Westlaw (database updated Feb. 2018); accord
High Desert Relief, Inc. v. United States, 917 F.3d 1170, 1179 n.4 (10th Cir.
2019).
More specifically, “[a] district court would necessarily abuse its discretion
if it based its ruling on an erroneous view of the law or on a clearly erroneous
assessment of the evidence.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,
8
405 (1990); see Davilla v. Enable Midstream Partners L.P., 913 F.3d 959, 971
(10th Cir. 2019) (“As always, however, a district court abuses its discretion when
it ‘bases its decision on an erroneous conclusion of law.’” (quoting Wyoming v.
U.S. Dep’t of Agric., 661 F.3d 1209, 1227 (10th Cir. 2011))). Therefore, the de
novo standard may play a role even under the overarching framework of the
abuse-of-discretion standard in determining “embedded issues of law.” United
States v. Wells, 873 F.3d 1241, 1253 (10th Cir. 2017); see Skaggs v. Otis Elevator
Co., 164 F.3d 511, 514 (10th Cir. 1998) (“A district court’s denial of a motion for
a new trial is reviewed for an abuse of discretion. . . . When the district court’s
decision turns on an issue of law, however, its determination on that question is
reviewed de novo.” (citations omitted)).
Therefore, we will review de novo whether the EPA’s “demand for
information or documents” was “arbitrary and capricious, an abuse of discretion,
or otherwise not in accordance with law.” 42 U.S.C. § 9604(e)(5)(B)(ii). Then,
we will examine the propriety of the district court’s injunction.
B
1
The Defendants first contend that the district court should not have ordered
them to comply with the EPA’s information requests because those requests
exceeded the EPA’s statutory authority to seek information under CERCLA.
9
More specifically, the Defendants make two arguments. First, they contend that
the information sought regarding Talisker was not relevant to UPCM’s
“ability . . . to perform a cleanup.” Id. § 9604(e)(2)(C). Second, they insist that
the Talisker-related requests were not made “for the purposes of determining the
need for response, or choosing or taking any response action under [CERCLA], or
otherwise enforcing the provisions of [CERCLA],” as required by § 9604(e)(1).
We address, then reject, both arguments.
a
According to the Defendants, the requested information about Talisker is
not relevant to UPCM’s ability to pay for or to perform cleanup because, under
well-settled principles of corporate separateness, Talisker has a separate corporate
existence from UPCM and, therefore, should be treated separately. See Quarles v.
Fuqua Indus., Inc., 504 F.2d 1358, 1362 (10th Cir. 1974) (explaining that “a
holding or parent company has a separate corporate existence and is treated
separately from the subsidiary in the absence of circumstances justifying
disregard of the corporate entity”). Moreover, as the Defendants reason, the
Supreme Court has explicitly held that the presumption of corporate separateness
applies in CERCLA cases. See Bestfoods, 524 U.S. at 62 (“[N]othing in
CERCLA purports to reject this bedrock [corporate separateness] principle, and
against this venerable common-law backdrop, the congressional silence is
10
audible.”). Thus, the Defendants contend, because the government has not even
alleged a corporate-veil-piercing theory, the information requested about Talisker
is irrelevant to UPCM’s ability to conduct or pay for clean up as a matter of law.
We disagree. It is undisputed that, pursuant to the plain terms of
§ 9604(e)(2), the EPA may request information from “any person” about a
potentially liable party’s ability to pay for or perform a cleanup, regardless of that
person’s own liability. And there are multiple undisputed facts that could have
reasonably led the EPA to question whether UPCM’s relationship with Talisker
was at least partially responsible for its alleged failure to meet its work and
payment obligations under the 2014 AOC. For example, in 2014, Talisker
defaulted on a loan for which UPCM had pledged collateral. The lender initiated
foreclosure proceedings against UPCM, and some of its properties were sold to
satisfy Talisker’s debts. Moreover, eleven years earlier, UPCM had been acquired
by a company that was allegedly affiliated with Talisker. In light of all this, we
can hardly say that the EPA made a “clear error of judgment,” Pennaco Energy,
Inc. v. U.S. Dep’t of Interior, 377 F.3d 1147, 1156 (10th Cir. 2004), in concluding
that it had an investigative interest in understanding the relationship between
Talisker and UPCM.
11
b
Next, the Defendants insist that the Talisker-related requests do not comply
with § 9604(e)(1) because they were not made “for the purposes of determining
the need for response, or choosing or taking any response action under
[CERCLA], or otherwise enforcing the provisions of [CERCLA].” 42 U.S.C.
§ 9604(e)(1). The Defendants’ argument here consists of two parts. First, they
contend that the government’s proffered purposes for issuing the information
requests were post hoc rationalizations on which the court could not rely. And
second, they argue that even the government’s alleged post hoc rationalizations
fail to show that the requests were made for a proper purpose. We conclude that
neither argument is persuasive to establish that the Talisker-related requests fail
to comply with 42 U.S.C. § 9604(e)(1).
More specifically, under the Defendants’ view, the government’s only
contemporaneous explanation of its purposes for making the information
requests—that is, a boilerplate recitation of the § 9604(e)(2) categories—was
insufficient to show that the requests were made for the purposes listed in
§ 9604(e)(1). The Defendants allege that the government later offered only three
post hoc rationalizations for why the requests fall within the purposes of
§ 9604(e)(1). In its cross-motion for summary judgment, the government claimed
that the requests
12
seek[] information to help EPA make decisions about . . . [1]
whether to take over and complete the EE/CA [Engineering
Evaluation/Cost Assessment] for OUs 2 and 3, [2] whether to
implement the response action for OUs 2 and 3, once selected, or
to allow or require UPCM to perform the response action, and [3]
enforcing the provisions of CERCLA, including requirements in
the 2014 AOC that UPCM prepare an EE/CA for OUs 2 and 3,
perform the cleanup ultimately selected by EPA, and pay EPA’s
response costs.
Aplts.’ App., Vol. VIII, at 397–98 (Gov’t’s Cross-mot. for Partial Summ. J., filed
Feb. 28, 2018).
The Defendants insist that these explanations would fail to establish that
the requests were made for proper purposes even if they were not post hoc
rationalizations. According to the Defendants, the first explanation fails because
the 2014 Agreement “specifie[d] the potential grounds for a work takeover, and
none involve[d] UPCM’s financial ability to pay or perform:
108. Work Takeover. In the event EPA determines that UPCM
has ceased implementation of any portion of the Work, is
seriously or repeatedly deficient or late in its performance of the
Work, or is implementing the Work in a manner which may cause
an endangerment to human health or the environment, EPA may
assume the performance of all or any portion of the Work as EPA
determines necessary. . . .
Aplts.’ Opening Br. at 39 (omission in original) (quoting the 2014 AOC, Aplts.’
App., Vol. II, at 86). “Indeed,” the Defendants point out, “the U.S. conceded
[that the] EPA [had] already decided, without the information sought through the
disputed § 9604(e)(2)(C) requests, to take over the EE/CA preparation.” Id. The
13
Defendants thus insist that the “EPA’s ability to make that decision, along with
the omission of financial ability from the enumerated, agreed-to grounds for work
takeovers, defeat the notion that the sought-after information is relevant to a work
takeover decision.” Id.
As for the second explanation—that the EPA “issued the 2016 requests to
assist it in determining ‘whether to implement the response action for OUs 2 and
3, once selected . . ., or to allow or require UPCM to perform the response
action’”—the Defendants argue that it fails for the same reason: the EPA had
“already made that determination as well.” Id. at 40 (quoting Aplts.’ App, Vol.
VIII, at 398). That is, the Defendants note that the 2014 AOC already expressly
provides that the UPCM will “implement the cleanup once selected by EPA.” Id.
(quoting Aplts.’ App., Vol. VIII, at 391–92).
Regarding the third and final explanation—that is, the EPA needed the
information to assist it in “enforcing the provisions of CERCLA, including
requirements in the 2014” AOC—the Defendants argue that this fails because
“[e]nforcing the 2014 Agreement is not the same as enforcing CERCLA,” and that
the government “identified nothing in CERCLA that the requested information
would enable EPA to enforce.” Id. at 40–41 (quoting Aplts.’ App., Vol. VIII, at
398).
14
As the Defendants assess the matter, the final nail in the coffin of the
government’s rationalizations was the revelation of the government’s supposedly
real reason for sending the information requests—to try to find information that
might support an alter ego claim against Talisker. See id. at 41; Aplts.’ App.,
Vol. XII, at 677 (Gov’t’s Reply in Supp. of Cross-Mot. for Partial Summ. J., filed
Apr. 11, 2018) (“Here, of course, the United States is merely seeking information
as part of an investigation to determine if [alter ego] claims might apply [to
Talisker].”). According to the Defendants, this real reason behind the information
requests “conflicts with § 9604(e)(1) and the legislative purpose of
§ 9604(e)(2)(C)” because “Congress never intended that EPA could pry into a
company’s sensitive . . . information with § 9604(e)(2)(C) requests to get a head
start on discovery into the viability of a potential alter ego claim against
affiliates.” Aplts.’ Opening Br. at 41–42.
In sum, according to the Defendants, the EPA’s “obfuscation of the
purpose[s] for its requests, followed by the [government’s] shifting explanations
for them . . ., [and] culminating with the [government’s] admission that the
requests were issued to cast about for potential alter ego evidence, [was] ‘an
abuse of discretion,’ which render[ed] them unenforceable.” Id. at 42–43
(quoting 42 U.S.C. § 9604(e)(5)(B)(ii)).
15
We are left unpersuaded by the Defendants’ arguments. At the outset, we
reject the notion that the government’s three reasons for the information requests
are impermissible post hoc rationalizations and thus inescapably arbitrary and
capricious. Significantly, the Defendants cite no statute or caselaw that requires
the EPA to expressly delineate, at the initial moment of making an information
request, its precise grounds for doing so. Certainly nothing in CERCLA imposes
this obligation on the EPA. The EPA’s initial 2016 letters requesting the
information quoted directly from § 9604(e)(2) and explained that the EPA sought,
among other things, “[i]nformation relating to the ability of a person to pay for or
to perform a cleanup.” 42 U.S.C. § 9604(e)(2)(C). The Defendants have simply
failed to show why this alone was inadequate—that is, why, in the 2016 requests,
the EPA was obligated to explain how its requests complied with 42 U.S.C.
§ 9604(e)(1).
Furthermore, we hold that all of the EPA’s requests fall within the purposes
authorized by § 9604(e)(1). Again, those three approved purposes are: “[1]
determining the need for response, or [2] choosing or taking any response action
under [CERCLA], or [3] otherwise enforcing the provisions of [CERCLA].” 42
U.S.C. § 9604(e)(1). Because the language of § 9604(e)(1) is disjunctive, the
government acts within its authority to make the requests so long as its reasons
for doing so fall within any one of the three approved purposes. See Loughrin v.
16
United States, 573 U.S. 351, 357 (2014) (holding that—for the term “or”—the
“ordinary use is almost always disjunctive, that is, the words it connects are to be
given separate meanings” (quoting United States v. Woods, 571 U.S. 31, 45–46
(2013))). We conclude that the EPA’s reasons for making the requests reasonably
fall within at least the second and third permissible purposes—i.e., choosing or
taking any response action under CERCLA, and otherwise enforcing the
provisions of CERCLA.
As we explained above, the government has argued that it made the
information requests for three reasons—to help the EPA make decisions about
[1] whether to take over and complete the EE/CA for OUs 2 and
3, [2] whether to implement the response action for OUs 2 and 3,
once selected, or to allow or require UPCM to perform the
response action, and [3] enforcing the provisions of CERCLA,
including requirements in the 2014 AOC that UPCM prepare an
EE/CA for OUs 2 and 3, perform the cleanup ultimately selected
by EPA, and pay EPA’s response costs.
Aplts.’ App., Vol. VIII, at 398.
These three stated reasons reasonably fall within the second permissible
purpose—“choosing or taking any response action under [CERCLA].” 42 U.S.C.
§ 9604(e)(1). The government believes UPCM is in material breach of the 2014
AOC, and has serious doubts about UPCM’s capacity to ever perform under the
agreement. The Defendants insist that the government has “presented no
undisputed facts that would allow EPA to repudiate or rescind [the agreement].”
17
Aplts.’ Opening Br. at 40. But the EPA does not need to do so. Even if it turns
out that the government is wrong in its assessment of UPCM’s ability to perform
its obligations under the 2014 AOC, the EPA nevertheless could reasonably send
out information requests for the purpose of “choosing or taking any response
action.” § 9604(e)(1). Regardless of whether UPCM has breached the 2014
agreement, the EPA can reasonably issue the information requests for the
purposes of considering whether future enforcement options or even new
agreements are necessary.
The three stated reasons for the information requests also reasonably fall
within the third permissible purpose—“otherwise enforcing the provisions of
[CERCLA].” 42 U.S.C. § 9604(e)(1). Again, the government believes UPCM has
breached the 2014 AOC. We acknowledge that the parties disagree on this issue.
But the fact remains that if UPCM is in breach, the government could pursue new
enforcement actions, including a claim to recover costs it will incur itself to
complete the work left unfinished due to UPCM’s failure to perform under the
2014 AOC. See 42 U.S.C. § 9607(a), (f). The information requests would permit
the EPA to—among other things—intelligently tailor any enforcement actions to
the scope of the alleged breach.
The Defendants argue that the information requests do not fall within the
third permissible purpose because enforcing the 2014 AOC “is not the same as
18
enforcing CERCLA.” Aplts.’ Opening Br. at 41. But this argument
misunderstands the relationship between the agreement and the statute. The
statute authorizes the EPA to enter into such agreements—to achieve the very
purposes of the statute—and the statute also authorizes daily penalties for
violations of consent decrees and administrative orders on consent. See 42 U.S.C.
§ 9609(a)(1)(E), (b)(5), (c)(5). Consequently, it simply strains credulity to
suggest that the EPA’s actions to enforce the 2014 agreement are not,
fundamentally, the EPA’s means of enforcing CERCLA itself.
2
The Defendants’ second major argument is that the district court’s order
runs afoul of the Fourth Amendment because it requires them to comply with
requests that are not reasonably relevant to the legislative purposes of
§ 9604(e)(2)(C). Recall again that this provision allows the government to access
information “relating to the ability of a person to pay for or to perform a
cleanup.” 42 U.S.C. § 9604(e)(2)(C). The Defendants insist that, under the
Fourth Amendment, the information requested must be “[r]easonably
relevant”—that is, “relevant to legislative purposes.” Aplts.’ Opening Br. at 31
(quoting United States v. Gurley, 384 F.3d 316, 321 (6th Cir. 2004)). Based on a
review of the statute’s legislative history, the Defendants argue that the sole
legislative purpose of § 9604(e)(2)(C) is to assess a person’s ability to pay for or
19
conduct a cleanup as a predicate to entering a settlement agreement. Thus,
because UPCM and the government already have entered into an agreement, the
information request could not be relevant to the legislative purpose of
§ 9604(e)(2)(C).
We disagree. Generally speaking, a government agency’s request for
information satisfies the Fourth Amendment if it is “within the authority of the
agency, the demand is not too indefinite and the information sought is reasonably
relevant.” United States v. Morton Salt Co., 338 U.S. 632, 652 (1950). We bear
in mind here that, typically, an agency’s “authority to request records and
undertake other investigatory functions is extremely broad.” Santa Fe Energy
Prods. Co. v. McCutcheon, 90 F.3d 409, 414 (10th Cir. 1996). The EPA’s
information requests fully satisfy this general Fourth Amendment standard. As
already discussed at length above, the requests fall squarely within the authority
given to the agency under CERCLA, and the information is undoubtedly relevant
in effectuating CERCLA’s purposes. Moreover, unquestionably, the requests are
sufficiently definite in their detail.
Yet, the Defendants argue for a narrower construction of the legislative
purpose of § 9604(e)(2)(C) and, hence, what is required under the Fourth
Amendment. They suggest that the statute’s purpose is to assess a person’s ability
to pay for or conduct a cleanup as a precondition to entering a settlement
20
agreement. But the broad language of the statute belies this restrictive reading.
The statute authorizes information requests to “any person who has or may have
information . . . . relating to the ability of a person to pay for or to perform a
cleanup”—without any reference to settlement agreements. 42 U.S.C.
§ 9604(e)(2)(C). In support of its narrower construction, the Defendants rely
heavily on CERCLA’s legislative history. Yet “[w]hat a legislature says in the
text of a statute is considered the best evidence of legislative intent or will.”
Holland v. Dist. Court, 831 F.2d 940, 943 (10th Cir. 1987) (quoting 2A C. Dallas
Sands, S[ U ] THERLAND ON S TATUTORY CONSTRUCTION § 46.03 (4th ed. 1973)).
Here, we see no reason to look well beyond the text of the statute in order to
divine its purpose. And, therefore, we are unpersuaded by the Defendants’
reading of the statute.
But, even assuming for the sake of argument that the Defendants are right
about the statute’s purpose, the information requests at issue are still “reasonably
relevant” to that purpose—that is, to the determination of whether UPCM has the
ability to pay for a cleanup as a predicate to potentially entering a new settlement
agreement. As already discussed, the government believes that UPCM is
currently in breach of the 2014 AOC. Irrespective of whether this is actually true,
the information sought by the EPA is still reasonably relevant to—more
specifically, helps to provide a predicate for—any assessment that the EPA might
21
need to make, in light of the Defendants’ perceived breach of the 2014 AOC,
about UPCM’s financial fitness for possibly negotiating revisions to the 2014
agreement (i.e., new settlement terms) or even negotiating an entirely new
agreement.
3
The Defendants also argue that the district court erred by enjoining them to
answer all of the EPA’s information requests, even though they had already
answered most. More specifically, they argue that the district court should not
have ordered them to comply with the requests they claim to have already
answered because § 9604(e)(5)(A) only authorizes the commencement of a civil
action to compel compliance with requests to which “consent is not granted.” 42
U.S.C. § 9604(e)(5)(A).
We discern no error in the district court’s ruling. Both request letters
required a notarized certification of the completeness of the response. The EPA
insists that the Defendants make these certifications. For their part, the
Defendants do not deny that they failed to sign the certifications. Yet, without
those certifications, the EPA has no firm assurance that the responses they have
been given by the Defendants are complete and correct. Remember, in this
situation, CERCLA instructs a court to “direct compliance with the requests or
orders to provide such information or documents unless . . . the demand for
22
information or documents is arbitrary and capricious, an abuse of discretion, or
otherwise not in accordance with law.” Id. § 9604(e)(5)(B)(ii). The EPA’s
insistence on certified responses to all its requests for information is neither
arbitrary nor capricious nor an abuse of discretion nor otherwise unlawful; the
certifications provided assurance of full compliance by the Defendants.
Therefore, the district court’s ruling was fully in line with the statute’s mandate,
and we uphold it.
4
Finally, the Defendants argue that the district court’s injunction violated
Federal Rule of Civil Procedure 65(d)(1)(C). That rule requires an injunctive
order to “describe in reasonable detail—and not by referring to the complaint or
other document—the act or acts restrained or required.” Fed. R. Civ. P.
65(d)(1)(C). The Defendants argue that the injunction here violated Rule
65(d)(1)(C) because it refers to the government’s information requests and does
not specify which parts of the requests must be answered.
With CERCLA’s regulatory backdrop in mind, we discern no legal error in
the district court’s injunction and thus conclude that the court did not abuse its
discretion. As the government points out, “the district court’s order is not a
typical injunction in the sense of an equitable remedy that a court develops on its
own. Rather, the order is a statutory remedy specified by Congress.” Aplee.’s
23
Resp. Br. at 40–41. That is, the district court directed the Defendants “to comply
with the requests for information”—the exact remedy that CERCLA establishes.
Aplts.’ App., Vol. XII, at 704; see 42 U.S.C. § 9604(e)(5)(B)(ii) (“In the case of
information or document requests or orders, the court shall enjoin interference
with such information or document requests or orders or direct compliance with
the requests or orders to provide such information or documents . . . .”). In short,
we agree with the government that “[b]ecause CERCLA already specifies the
precise type of relief that the district court ordered,” there is no danger the
Defendants will be left uncertain as to how to comply. Aplee.’s Resp. Br. at 41.
Accordingly, we reject this challenge of Defendants to the legal propriety of the
court’s injunction.
III
For the foregoing reasons, we AFFIRM the district court’s summary
judgment and permanent injunction order.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
24