# Grine v. Coombs

> District Court, W.D. Pennsylvania · May 5, 2003 · 214 F.R.D. 312

URL: https://www.frixlaw.com/law-library/cases/8735717

## Case

- **Full name:** Robert W. GRINE, II v. William R. COOMBS
- **Court:** District Court, W.D. Pennsylvania
- **Decided:** May 5, 2003
- **Citations:** 214 F.R.D. 312; 2003 U.S. Dist. LEXIS 11177; 2003 WL 21146083
- **Precedential status:** Published
- **Opinion:** Opinion of the court by McLaughlin
- **Judges:** McLaughlin
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8735717

## How later opinions describe it (automated extraction)

- holding that passive ownership of land does not impose liability absent evidence of owner’s active participation in the contamination

## Opinion text

*314
MEMORANDUM OPINION
MCLAUGHLIN, District Judge.
This ease, which has now been pending in this Court for over seven years, involves allegations by the Plaintiffs that their up-gradient neighbor and other culpable parties engaged in unlawful disposal practices that resulted in the contamination of their Tiones-ta Borough property. Presently pending before the Court are motions by several of the Defendants seeking summary judgment. We conclude that dismissal of this case with prejudice is appropriate because of the willful conduct of Plaintiffs and their counsel in failing to respond to the Defendants’ respective motions for summary judgment. In order to give proper context to the Court’s present situation, it is necessary to set forth the highlights of this long and complicated case in some detail.
I. PROCEDURAL HISTORY
A. THE ALLEGED OPERATIVE FACTS
Plaintiffs Robert W. Grine, II and JoAnne Grine are residents of Tionesta Borough in Forest County, Pennsylvania. 1 The tract of land on which they reside includes a wet weather spring and a water well. Defendant Billie M. YostAHepfer (‘Yost”) owns a parcel of land immediately adjacent to the Grines’ property on an up-gradient slope. Yost acquired this property from her parents, Mr. and Mrs. William Coombs, in 1990. Prior to his death in 1997 Defendant William Coombs owned a camp site (the “Coombs Property”) located immediately adjacent to, and further up-gradient from, Yost’s parcel. Also named as a Defendant in this case is Jack W. Shrum, et ux. (“Shrum”), the son-in-law of William Coombs. Shrum is the title-holder of a separate tract of property located adjacent to the Grines’ property and previously owned by Coombs.
It has been Plaintiffs’ contention that, beginning in or around 1993-94, hazardous waste was illegally stored, handled, or otherwise disposed of on the Coombs, Yost and/or Shrum properties. This mishandling of hazardous waste, it is alleged, resulted in contamination that migrated to the Grines’ property, causing them both personal harm and property damage. [See Amended Complaint (“AC”), Doc. No. 4, at 1118.] Plaintiffs have also complained that raw sewage has invaded their property and their well water, allegedly as the result of Defendant Coombs’s use of an outdated septic system. [Id. at ¶¶ 20, 28.]
In July of 1994, Robert Grine contacted officials from the Borough of Tionesta regarding a sewage discharge that Mr. Grine perceived was collecting in the area of his wet weather spring. According to Plaintiffs, raw sewage was draining from Coombs’s land onto the Grines’ property via a pipe connected to a toilet in Coombs’s cabin. [AC 1120.]
Robert Grine continued to notice unusual events thereafter. In August 1994, Mr. Grine discovered what he described as a “white snake” of foamy water flowing from his wet weather spring and traversing his property. Soon thereafter, Plaintiffs noticed that vegetation and small animals were dying in close proximity to the path of the spill. [AC at H22J Mr. Grine expressed concern to the Pennsylvania Department of Environmental Protection (“DEP”) 2 that contaminants emanating from his neighbors’ up-gradient properties were polluting his land.
The DEP responded by conducting a site inspection of the Grines’ property on September 22,1994, at which time soil and water samples were taken from the property. It was noted that the dead animals found on Mr. Grine’s property ranged from small mammals to invertebrates, such as earthworms. A tissue sample was taken from one of the dead mammals and sent to the U.S. Fish and Wildlife Service Laboratory for *315 analysis. However, due to the intervening time lapse and the advanced state of decomposition of the tissue sample, no meaningful analysis could be performed. [See Doc. 127, Ex. 6.]
Plaintiffs allege that, on or about October 4, 1994, DEP Agent Gary Wozniak videotaped a yellow plastic drum and lid in plain view on the Coombs Property which was embossed with the designation “DOTE9775,” the corporate designation “Essex Environmental Industries, Inc. of Tube Drive, Hurst, Texas,” and the trademark “Enviropack, TM.” [AC at 1126.] According to Plaintiffs, Wozniak informed them on or about November 22, 1994 that one of the yellow plastic drums had been dragged by Coombs into his cabin, where it was used as a water reservoir that flushed a primitive toilet inside Coombs’s Cabin. [Id. at ¶ 27.] Plaintiffs claim that one of several pipes running from the toilet emptied into a septic tank with no leach field and discharged directly onto their property. [Id. at ¶ 28.]
The DEP conducted additional site investigations and samplings of the Grines’ property on October 5, 7, and 31 of 1994. According to the DEP, initial sampling of the Grines’ well revealed trace amounts of pesticide compounds and low levels of eoliform bacteria. Although the presence of trace amounts of pesticides was considered somewhat unusual in light of the sound construction and depth of the Grines’ well, the DEP did not consider the amounts to be above reportable levels or at levels harmful for human consumption. The Grines were informed of the laboratory results concerning the presence of eoliform bacteria in the well and were advised by the DEP that they could avoid any adverse health effects by boiling their water before consuming it. At or around that time, the Grines began using bottled water. In addition, the DEP conducted air monitoring tests with various instrumentation, including a photo-ionization detector (PID), a flame-ionization detector (FID), and oxygen meters. The air monitoring tests revealed sporadic oxygen deficits and the presence of low levels of unidentified compounds. [Doc. No. 127, Ex. 3, 6.]
Meanwhile, in October 1994 Mr. Grine himself began to collect various samples from his wet weather spring and soil, which he submitted to an entity known as Stewart Laboratory for testing. The parties dispute the results of this testing. Defendants contend that the initial analysis conducted by Stewart revealed the presence of low level concentrations of thirteen volatile compounds. [Doc. 127, Ex. 4.] However, Plaintiffs allege that these results indicated the presence of some 58 volatile organic chemicals in heavy concentrations. [AC at U 23.] According to Plaintiffs, “Stewart Laboratories’ personnel, upon obtaining these results, informed [Robert Grine] that an extremely dangerous situation had been created on his property, and directed him to inform the [DEP] and the county emergency manager ... that an emergency response should be initiated.” [Id. at ¶ 24.] Plaintiffs claim that the DEP did not respond until four or five days later. In the meantime, Plaintiffs claim, Agent Wozniak of the DEP “threatened Robert Grine with a retaliatory prosecution” if the Plaintiffs persisted in the filing of a complaint and insisted on initiating a site investigation. [Id. at ¶ 25.]
On November 27, 1994, Coombs’s septic system was inspected by Randall Spence, Sewage Enforcement Officer of Tionesta Borough. At that time, Defendant Coombs informed Mr. Spence that he (Coombs) was using a 300 gallon septic tank located immediately south of his dwelling. According to Mr. Spence, his inspection of the Coombs Property yielded no evidence of a leech field, discharge pipe, or evidence of sewage discharges. Nevertheless, by letter dated November 29, 1994, Mr. Spence notified Coombs that Coombs’s then existing septic system was inadequate in the following respects:
1. The existing tank (300 gal.) is under sized. The minimum size permitted is 1000 gal.
2. You showed us where your gray water 3 was not being discharged to the Septic Tank, but rather to a pit next to *316 the tank. Under the rules and regulations, all discharge must go to the primary treatment tank.
3. You showed us where your discharge line from your tank went. It is a single line, not installed in the proper manner, (being level for even distribution of effluent).
Mr. Spence advised that Coombs could bring his septic system into compliance with current standards by installing a holding tank of the proper size. [Doc. No. 127, Ex. 1, attachment E.]
Meanwhile, in October of 1994 the investigation of the Grines’ case was referred by the DEP to the U.S. Environmental Protection Agency (“EPA”). Vincent Zenone, the on-site coordinator (“OSC”) for the EPA’s Region III Hazardous Waste Management Division, conducted an assessment of the Grines’ property on December 6, 1994. Accompanying Zenone were agents of Roy F. Weston, Inc. (“Weston”) — -the EPA’s designated technical assistance team (“TAT”), officials from the DEP, and the Tionesta Borough Manager. Weston personnel conducted air monitoring with photo-ionization detectors (PID) and flame-ionization detectors (FID). They also conducted a radiation survey with a Micro-R gamma radiation meter. Although no elevated radiation readings were obtained, both the PID and FID recorded elevated levels of organic vapors at or just below the soil surface. [See Declaration of Vincent Zenone dated 5/28/96 at If 7 [Doe. No. 29, Ex. B] and attachments thereto.]
Based on the elevated vapor readings, OSC Zenone concluded that further investigation of the property was warranted. Accordingly, on December 20, 1994, Weston collected seven soil gas samples from the area of the Grines’ wet weather spring and the swale that received the drainage. Despite the elevated vapor readings, lab analysis of all soil samples revealed no detection of the compounds tested. Nonetheless, Zenone ordered further sampling of the Grines’ property in an attempt to identify the source of the vapors that were apparently present in the soil. [Zenone Deck at HH 7-8.]
Additional testing was conducted in January 1995. On January 24-25, 1995, the EPA’s TAT attempted to collect ground water samples near the ground surface in order to determine whether groundwater in the area was contaminated. TAT personnel could not obtain subsurface groundwater samples, however, due to the presence of a stratified, impervious “hard pan” layer approximately 12 to 18 inches below the surface. This “hard pan” layer suggested to Zenone that foamy water from the Grines’ wet weather spring originated from surface run-off, as opposed to groundwater migration, since groundwater would likely not be capable of penetrating the hard-pan layer. This theory was also consistent with the fact that the Grines’ wet weather spring reportedly manifested itself only after heavy rains or snow melts. Zenone also thought that the hard-pan layer might be impervious to penetration by gas, thus explaining why the PID and FID readings had detected low concentrations of volatile organic compounds (“VOCs”) at or just below the ground surface during the December 6 and 20, 1994 inspections, yet no VOCs had been detected in the soil-gas samples collected on December 20, 1994 from below the hard-pan layer. [Zen-one Deck at K 9.] Despite the presence of the hard-pan layer, Weston personnel were able to test for contamination of the Grines’ ground water supply by collecting two water samples from the Grines’ well system. One sample was taken from the kitchen sink, which included a filter system, and another was taken from an outside spigot, which did not include the filter system. According to the EPA, these samples did not reveal detectable results for any of the contaminants they had been tested for. [Zenone Deck at 1110.]
Zenone next arranged for soil testing above the hard-pan layer in areas both up-gradient and down-gradient from the Grines’ wet weather spring. On February 9, 1995, the TAT collected thirteen samples from ten different locations on the Grines’ property, including five samples from the Grines’ wet weather spring and the down-gradient swale into which the spring drained and three samples from the Grines’ up-gradient northwest property line, which bordered on Yost’s parcel. Two samples were also collected from outside of the area under investigation. According to the EPA, the results from these *317 samples generally failed to detect any of the chemical compounds being tested. With respect to the samples that came back with positive results, the EPA considered those concentration levels to be well below any level which would justify a removal action or which would pose a health risk to the Grines. [Zenone Decl. at ¶¶ 11-12.]
Concurrent with the EPA’s removal evaluation, the EPA enlisted the support of the Department of Health & Human Services, Agency for Toxic Substance and Disease Registry (“ATSDR”) and the Pennsylvania Department of Health in order to determine the human health implications for the Grines based on the data that had been gathered from the investigation of their case. On March 9, 1995, the ATSDR reported that all analytical data had been “evaluated for it’s [sic] potential to cause adverse health effects in the human population residing in and around the Grine property.” With regard to the analytical testing performed, the report made the following observations:
The samples which were analyzed for VOCs, semi-VOCs, PCBs, pesticides, metals, cyanide and bacteria were all essentially nondetectable except for a few extremely low level concentrations in the soil of benzoic acid, di-n-butylphthlate, bis(2ethylhexyl) phthalate. The naphthalene, methylene chloride and 1,2,3-triehloroben-zene concentrations which were detected are all considered non-detect due to blank contamination. In addition, the concentrations of metals detected in the soil and water were all levels which are considered background or naturally occurring in the ambient environment.
The 6 compounds previously mentioned in the preceding paragraph could be explained, in the case of the methylene chloride, as a commonly found artifact or contaminant of laboratory analysis; the 2 phthlates are pervasive throughout the soils of the U.S. because of their usage as plasticizers in all sorts of consumer products (trash bags, PVC pipe, plastic toys, paints, varnishes, ink, etc.); the naphthalene and benzoic acid are both constituents of kerosene and fuel oil, as well as the benzoic acid being found in plugging agents used in sealing subterranean oil formations; and, finally, the 1,2,3-trichlo-robenzene which is found in dyes, solvents, and as a heat transfer solvent. All of the levels detected are below any level of health concern by all routes of exposure. The soil gas samples were all non-detect, as were the groundwater samples.
^ ^ ^
The soil samples which were analyzed for fecal and total coliform all came back positive which is indicative of possible microbial contamination.
[Zenone Deck at 1113, and attachment 5 thereto (emphasis added).] Based on all of the analytical data provided, the ATSDR concluded:
1. The levels in the analytical data presented to ATSDR do not represent a health hazard to the residents living in or around the Grine property.
2. The contaminants which were detected indicate the strong likelihood of a petroleum or petroleum-like product being released into the environment.
[Id. (emphasis added).]
In late February 1995, the Grines’ wet weather spring began to flow again. DEP officials visited the Grines’ property on February 28, 1995 and, based on their visual observations, detected the presence of a petroleum product in the water. According to the DEP and EPA, subsequent analysis of samples collected from the wet weather spring confirmed that the material was determined to be a weathered kerosene. [Doe. 127, Ex. 4.]
Because Robert Grine remained adamant that dumping had occurred on his neighbors’ up-gradient property and had flowed down onto his, Weston personnel collected five soil samples and two drum samples from the Coombs Property on March 14, 1995, at the direction of OSC Zenone. According to Zen-one, testing of the drum samples indicated a material consistent with petroleum products, which was also consistent with Coombs’s representation that the drums had contained used motor oik Analytical results of the Coombs soil samples indicated low concentrations of total petroleum hydrocarbons and one semi-volatile compound (9 ug/kl of xylene *318 in one sample). No PCBs, pesticides, other semi-volatile compounds or VOCs were detected on the Coombs property. [Zenone Decl. at H14.] Zenone also conducted a visual inspection of the Coombs Property on March 14, 1995 to assess whether it was the likely source of the substances found on the Grines’ property. According to Zenone, there was no evidence “indicat[ing] that contaminants had been spilled or dumped on the Coombs’ property in anywhere near sufficient quantities to move down the gradient to the Grines’ property.” [Id.] There was no evidence of damaged or dead vegetation or soil stains that likely would result from such spills or dumps and no physical pathways, such as erosion channels, caused by any spilled material migrating to the Grines’ property. Accordingly, based on his observations and the data obtained from the Coombs Property, Zenone considered it “highly unlikely” that the Coombs Property was the source of any hazardous substances on the Grines’ property. [Id.]
On March 15, 1995, Zenone attended a meeting with the Robert and Margaret Grine and Ms. Haagensen at the office of Rita Foley, District Representative for the Grines’ Congressman, Ronald Klink. Also present at the meeting were representatives from the EPA’s Technical Assistance Team, the ATSDR, the DEP and the Pennsylvania Department of Health. In connection with this meeting, Zenone prepared a document outlining the collective efforts undertaken by the EPA and DEP relative to their investigation of the Grine and Coombs properties. Zen-one concluded that none of the samples taken by the EPA, the DEP or the Grines during this time-frame met or even approached the Agency’s Emergency Removal Guidelines, which set forth pre-established levels of concentrations of certain substances that may trigger an EPA removal action. As an example, Zenone represented that the highest level of any substance detected at the Grines’ property was barium, which was detected at a concentration of 345.0 parts per million; the Removal Action Level for barium is 55,-000 parts per million. [Zenone Decl. at II15.] Having considered all of the data relative to samplings conducted by the EPA, DEP and the Grines, Zenone concluded in March 1995 that the amount and/or concentration of any hazardous substances present on the Grines’ property did not warrant a federal removal action. [Id. at ¶ 16.] Robert Grine was apprised that the DEP, as lead agency in the investigation, would continue to evaluate the conditions at his property; however, absent changed conditions or new information, it was the EPA’s view that no further federal action was necessary at the property. [Id.]
Notwithstanding the EPA’s decision not to conduct a removal action, the Plaintiffs continued to complain of environmental problems on their property and related physical complaints. They claim that, in June of 1995, the barrels on the Coombs Property were filled with fluids which foamed over the sides and blackened the ground on the Coombs Property. [AC at II30.] They further allege that, with every heavy rainstorm throughout the Spring and Summer of 1995, liquid waste would rise up from their spring and flood their back yard, creating a stench that would invade their home. [Id. at ¶ 34.]
On or around June 26, 1995, Defendant Coombs’s 300 gallon septic tank was replaced with a 1,000 gallon holding tank. According to Randall Spence, since the replacement of this tank, the Coombs Property has been in compliance with applicable sewage-related regulations. [Doc. No. 127, Ex. 1.] Plaintiffs contend, however, that the contractor hired to remove the old septic tank moved soil with a backhoe, pushed barrels and other debris into waste piles, and graded the ground surface in such a manner that all the runoff would be channeled directly onto the Grines’ property. [AC at 1141.] Allegedly, contaminated soil and drums were removed from the Coombs Property in the presence of DEP and Borough officials and transported without a permit to unknown locations. [Id.] The private contractor, Shawn Passauer, denies that he removed any barrels, drums, contaminated soil and/or toxic materials during this event. [Doc. No. 286, Ex. L]
In August 3, 1995 the DEP tested. Coombs’s well at the Grines’ request. According to the DEP, the results showed trace amounts of pesticides, but not at or near levels that would present a danger to human health. In addition, the tests showed a high bacteria count which DEP officials felt was attributable to the inactivity of the system. *319 No fecal contamination was detected in Coombs’s well. Further, while Coombs’s well revealed relatively high iron and manganese concentrations, DEP officials did not consider this unusual for the location or harmful to human health. These results were felt by the DEP officials to be consistent with other neighboring water supplies that were also sampled by the Department. [Doc. No. 127, Ex. 3.]
Further testing of the Grines’ well water was conducted in 1996. On July 1, 1996, samples from the Grines’ well were tested and found to contain total coliform, fecal coliform, and fecal strep. The DEP claims that the Grines were immediately notified of the results. Because of these heightened levels, the Department conducted follow-up sampling on August 7, 1996. According to the DEP, laboratory analysis of the follow-up samples revealed that the levels of coliform and fecal coliform were still present, but at greatly reduced levels. [Doc. No. 127, Ex. 3. ]
In light of the heightened bacteria count, counsel for the DEP contacted the Pennsylvania Department of Health, Bureau of Epidemiology regarding the health risks associated with the presence of total coliform, fecal coliform, and fecal strep in the Grines’ water supplies. The DEP’s attorney was advised that the July 1, 1996 sample result levels were comparable to other results obtained from a large number of wells throughout the Commonwealth that had been contaminated during flooding in January of that year. While the levels from the July 1 testing did represent a health risk for consumption, they did not present any health risk for bathing and other non-consumption uses. The Grines were instructed as to how they could abate the problem either by cleaning their well or, alternatively, by drilling a deeper one. In the meantime, until the problem was abated, it was recommended that the Grines refrain from any use of the water, such as washing dishes or brushing teeth, that might result in their ingestion of the bacteria. [Doc. No. 127, Ex. 3.]
Meanwhile, in November of 1994, Special Agent Martin Wright of the EPA’s Criminal Investigation Division (“CID”) became involved in the case. In the course of investigating whether any criminal violation of the federal environmental law had occurred at the Grine and Coombs properties, Agent Wright spoke with numerous individuals. Among those whom Agent Wright contacted were Daniel Holler and Gary Wozniak of the DEP. In the course of his criminal investigation, Agent Wright discussed with Holler and Wozniak their activities and conclusions relative to the DEP’s investigation of the Grines’ environmental complaints. Wright’s conversations were memorialized in six (6) “Reports of Investigation” (“ROIs”), which collectively covered the period November 4, 1994 through April 30, 1996, when the investigation concluded. Agent Wright also conducted separate interviews with Robert Grine and William Coombs on February 9, 1995 and September 11, 1995, respectively. Each interview was memorialized in a memorandum of Interview (“MOI”). [Doc. No. 165, Ex. 4] At one point in the course of Agent Wright’s investigation, both William Coombs and Robert Grine were identified as a possible source of the contamination. 4 However, no criminal charges have ever been filed by the United States Attorney’s Office.
Ultimately, both the DEP and EPA appear to have concluded that the source of the Grines’ pollution incidents remains unclear. In a letter to Mr. Grine dated May 11, 1995, Dennis P. Carney, Chief of EPA’s Region III Superfund Removal Branch, offered the following:
Because no source has been positively identified, EPA considers that there may be several possible sources. The data collected by EPA and [DEP] have provided clues to possible sources that [DEP] is continuing to pursue in their investigation. The presence of small concentrations of *320 benzene, toluene, xylene, and naththalene in the wet weather spring, as verified by sampling data, suggests a petroleum source. The presence of coliform bacteria on your property suggests a malfunctioning septic system. The presence of small concentrations of 1,1,1-trichloroethane suggests the possibility of septic tank cleaning or other household cleaning agents. The presence of trace concentrations of pesticides might point to runoff from the farm field upgradient from your property.
[Doc. No. 127, Ex. 7.] Nevertheless, based on his investigation, OSC Zenone considered it “highly unlikely” that the Coombs Property was the source of any hazardous substances on the Grines’ property. [Doc. No. 29, Ex. B at H14.]
B. THE FOIA PROCEEDINGS
Plaintiffs’ attempt to acquire information from the EPA concerning the investigation of their complaints forms a whole separate sub-chapter of this litigation. On October 13, 1995, Janice .Haagensen, Esq., one of Plaintiffs’ counsel in the instant matter, submitted a request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 , for all EPA records relating to the complaint which Plaintiff Robert Grine had filed with the Commonwealth DEP. The EPA’s Region III Administrator, Michael McCabe, responded by letter dated November 28, 1995. The letter addressed only those documents maintained by the Region III Superfund Removal Program; it did not address any documents maintained by EPA’s Criminal Investigation Division (“CID”), a separate EPA office managed from Washington, D.C. McCabe’s letter of November 28 identified four distinct categories of documents that the Agency was declining to disclose based on its view that the documents were exempt from disclosure under FOIA, to wit:
a) Ten (10) Technical Directive Documents (“TDDs”) and attached documents submitted by Roy F. Weston, Inc. to the EPA under a Technical Assistance Team (“TAT”) Contract (withheld under § 552(b)(4) pertaining to trade secrets or commercial or financial information);
b) Five (5) interoffice memoranda distributed via EPA’s Region III Local Area Network (withheld under § 552(b)(5) relating to documents protected by the deliberative process privilege);
c) One (1) page of handwritten notes generated by Daniel Isales, Esq., EPA’s Assistant Regional Counsel (withheld under § 552(b)(5) pertaining to attorney work product); and
d) Fourteen (14) entries from the log book of EPA On-Scene Coordinator Vincent Zenone (withheld under § 552(b)(7)(A) pertaining to documents that could reasonably be expected to interfere with enforcement proceedings).
Ms. Haagensen appealed the denial of disclosure of these documents on December 20, 1995, and the appeal was assigned to the EPA’s Office of General Counsel (“OGC”).
In follow-up conversations with EPA’s OGC and Office of Regional Counsel, Ms. Haagensen raised concerns that the copies of documents released by EPA were of poor quality, that certain portions of OSC Zen-one’s log book had been extensively redacted, and that certain test data and correspondence appeared to be missing from the files released. The EPA responded to these concerns by letter dated February 29, 1996. With this letter, the EPA provided new copies of certain documents previously released to Plaintiffs’ counsel. In addition, the Agency advised that the redacted portions of Zen-one’s logbook concerned sites unrelated to the Grine and Coombs Properties and further represented that all sampling data had been released to Plaintiffs.
In the course of these conversations, EPA became aware that Plaintiffs’ FOIA request had not been routed to the Criminal Investigations Division in Washington, D.C. for responsive action. On February 29,1996, EPA rerouted the initial FOIA request to CID for CID’s response relative to any documents held in the Washington office.
C. THE DISTRICT COURT PROCEEDINGS
In the meantime Plaintiffs, dissatisfied with the local, state and federal governments’ responses (which they perceived as inadequate), and still convinced that the Coombs, Yost and Shrum properties were the source of hazardous contaminants, commenced this lawsuit in December 1995 through their at *321 torneys, Janice Haagensen, Esq. and Donald Williams, Esq. Those named as defendants in the 21-page complaint included William Coombs, Yost, Shrum, Essex Environmental Industries, Rotocast Plastic Products, Tionesta Borough, Ronald Hall (President of the Borough Council), Scott Daum (Borough Manager), the DEP, Gary Wozniak (an agent of the Pennsylvania DEP), and Daniel Holler (Emergency Response Coordinator of the DEP). Plaintiffs’ complaint asserted eight causes of action, including federal claims under the “citizen suit” provisions of the Resource Conservation and Recovery Act of 1976 (“RCRA”), 42 U.S.C. §§ 6901 , et seq., the Federal Water Pollution Control Act (“Clean Water Act” or “CWA”), 33 U.S.C. §§ 1251 , et seq., and the Comprehensive Environmental Response, Compensation, and Liabilities Act of 1980 (“CERCLA”), 42 U.S.C. §§ 9601 et seq., as amended by the Superfund Amendments and Reauthorization Act of 1986. Plaintiffs’ remaining counts asserted causes of action under Pennsylvania state law theories of intentional infliction of emotional distress, trespass, nuisance, and strict liability, as well as an alleged violation of the Pennsylvania Hazardous Sites Cleanup Act ’ (“PHSCA”), 35 Pa. Stat. tit. 35, § 6020.101 et seq. (Purdons 1993 and 1996 Supp.). Plaintiffs’ theory, in a nutshell, is that all of the named Defendants were liable under one or more of the federal environmental claims (and also liable under some or all of the pendent state law claims) as responsible parties contributing to the contamination of the Grines’ property.
No further docket activity occurred until March 19, 1996, when Plaintiffs filed an ex parte motion for temporary restraining order. Plaintiffs’ TRO motion alleged that Plaintiffs continued to suffer harmful physical effects from the contamination on their property 5 and that the EPA and DEP had failed to conduct sufficient testing and remediation of the problem and/or had failed to communicate the results of such testing. Their motion for a TRO requested that the EPA and DEP be compelled to identify the toxic chemicals allegedly present on their property, identify the source and responsible parties, undertake proper remediation, release all files pertaining to their own independent investigations of the property, and pay for any measures necessary to ensure the Grines’ health and safety. 6 This Court denied the motion on March 19,1996 because no notice had been given to the Defendants *322 and because Plaintiffs’ counsel had failed to comply with Rule 65’s requirement that counsel “certiffy] to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required.” Fed.R.Civ.P. 65(b).
On April 2,1996, Plaintiffs filed an Amended Complaint which incorporated all of Plaintiffs’ prior claims and added the EPA and Michael McCabe as Defendants in an additional claim under the Freedom of Information Act. Plaintiffs asserted that, following their administrative appeal on December 20, 1995 from Mr. McCabe’s partial denial of their FOIA claim, they had received documents from the EPA which were incomplete or illegible. Specifically, Plaintiffs complained that extensive portions of Mr. Zen-one’s log book had been redacted or rendered illegible, yet were not referenced in McCabe’s November 28, 1995 letter as information being deliberately withheld. (AC at H 158.) Additionally, Plaintiffs alleged that certain test results turned over by the EPA were released with pages missing or were provided without any index or internal key to the codes utilized therein. (Id. at ¶ 159.)
Plaintiffs next filed on May 8, 1996 a motion for preliminary injunction in which they asked this Court to:
1. enjoin the Defendants from releasing hazardous substances onto the Coombs, Yost, Shrum or Grine properties and/or from allowing such hazardous substances to remain upon those premises;
2. enjoin the EPA and DEP from withholding records relative to the filing of Plaintiffs environmental complaint;
3. enjoin the EPA from refusing to further investigate the ownership and whereabouts of the allegedly offending containers;
4. enjoin the DEP from refusing to test Plaintiffs’ well for possible contaminants and direct the DEP to supply the Plaintiffs with an alternative water supply;
5. order the Coombs Property to be fenced off with notice prohibiting any further disposal of hazardous substances;
6. order the Commonwealth to release funding to Plaintiffs for alternative temporary housing.
(Pl.’s Mot. for Prelim. Inj. [Doc. No. 12].) Attached to Plaintiffs’ motion were affidavits from Plaintiffs JoAnne, Margaret, and Robert Grine, Lee E. Denlinger, M.D. (Margaret Grine’s physician), and a lay individual by the name of Douglas Carlson. The Plaintiffs’ affidavits outlined their general observations about the changes in their property, the symptoms they had experienced, and the general change in their lifestyles as a result of the contamination of their property. Dr. Lee E. Denlinger’s affidavit indicated that he had treated Margaret Grine for multiple past medical problems including a significant underlying cardiopulmonary disorder, multiple medication allergies, and possible multiple myeloma, all of which made Mrs. Grine particularly susceptible to chemical exposures. (Id., Ex. A.) Mr. Carlson’s affidavit discussed his activities in assisting Robert Grine collect water samples for chemical testing, his observations as to the unusual odor of the samples he collected, and his observations of drums on the Coombs Property which appeared to contain an oily-type substance. Notably absent from Plaintiffs’ motion for a preliminary injunction was any expert report or affidavit that would establish to a reasonable degree of scientific certainty: (i) that Plaintiffs’ physical symptoms were attributable to specific hazardous substances to which they had been exposed; (ii) that these same hazardous substances existed in and around their property in quantities that would pose a danger to humans; and (iii) that the geological source of this contamination was the Coombs Property. 7
*323 All Defendants opposed the Plaintiffs’ motion for preliminary injunction, but the responses of the government defendants are of particular note. In their opposition papers, the Commonwealth Defendants made several counter-allegations. Substantively, the Commonwealth asserted that it had provided Plaintiffs access to all of the DEP’s records in accordance with Pennsylvania’s Right-to-Know Law, 65 P.S. § 66.1 et seq. Second, the Commonwealth maintained that it had made extraordinary efforts to address Plaintiffs’ environmental complaints over the previous 18 months, having conducted at least 18 separate site visits, taken over 200 samples of air, water and soil from the properties, and incurred over $20,000 in sampling costs alone. Through these efforts, the DEP maintained, it had been able to confirm the occurrence of some “pollution incidents” at the Plaintiffs’ property. Specifically, it had detected the presence of certain hazardous substances in Plaintiffs’ water supply and nearby water supplies, but in concentrations that would not constitute a serious threat to the Plaintiffs’ well-being. Thus, while the DEP had not been able to pinpoint the precise cause and extent of the pollution, it had determined that there was no substantial or imminent threat to the well-being of Plaintiffs or the surrounding community on account of these incidents. The Commonwealth maintained that it had refused to repeatedly test the Plaintiffs’ water for contaminants only because further testing would be unnecessary and wasteful. Third, the Commonwealth averred that Plaintiffs had failed to cooperate with the DEP’s investigative efforts by, e.g., refusing to allow DEP officials to access their property in order to remove discolored soil.
Procedurally, the Commonwealth Defendants challenged this Court’s jurisdiction to award the requested relief, arguing that: (1) the Eleventh Amendment barred Plaintiffs from pursuing their claims against the Commonwealth Defendants in federal court; (2) Plaintiffs had stated no viable federal cause of action against the Commonwealth Defendants; and (3) Plaintiffs had failed to comply with the jurisdictional notice-of-suit requirements relative to their federal environmental claims.
The EPA similarly opposed Plaintiffs’ issuance of a preliminary injunction. In response to Plaintiffs’ demand for additional documents, the EPA asserted that Plaintiffs had never properly perfected service of their Amended Complaint or preliminary injunction motion on the EPA, Plaintiffs had failed to administratively exhaust their FOIA claim, and the disputed documents were exempt from production under FOIA. Insofar as Plaintiffs sought to compel further investigation or remediation by the EPA on then-property, the EPA countered that the doctrine of sovereign immunity prevented the Plaintiffs from pursuing these claims against the government, and the Court otherwise lacked subject matter jurisdiction to compel what was essentially discretionary action within the EPA’s expertise. 8 In support of their response, the EPA submitted a declaration from Vincent Zenone dated May 28, 1996. Based on information provided in Zen-one’s declaration (and documents appended thereto), the EPA argued that Plaintiffs could not establish a likelihood of success on the merits of their federal environmental claims or show that irreparable harm would result in the absence of the requested relief.
On May 30,1996, this Court held a hearing on Plaintiffs’ motion for preliminary injunction. At the hearing, the only witness on behalf of Plaintiffs was Robert Grine, who essentially reiterated his personal observa *324 tions relative to the contamination of his property and the physical symptoms that he and his family had experienced, as set forth in his affidavit. Plaintiffs once again proffered no expert testimony or reports to substantiate their theory that Coombs and/or the other Defendants were responsible for the alleged contamination of the Grines’ property and their alleged physical complaints. Instead, Robert Grine attempted to establish the necessary causal links by attempting to testify about his own personal research in the area of hazardous toxins.
At the conclusion of the hearing, this Court denied the Plaintiffs’ motion for preliminary injunctive relief. With respect to Plaintiffs’ request that the EPA be compelled to produce its file, the Court noted that Plaintiffs’ administrative appeal was not complete. It directed the EPA to administratively resolve Plaintiffs’ FOIA appeal on or before July 15, 1996, after which time further litigation of the claim could be entertained, if necessary. Insofar as Plaintiffs sought to compel the EPA and the DEP to take additional remedial measures on their property, the Court found that Plaintiffs had failed to demonstrate a likelihood of success in obtaining such relief in light of the holdings of Allegheny Cty. Sanitary Authority v. U.S.E.P.A., 732 F.2d 1167 (3d Cir.1984) (Eleventh Amendment barred municipal sewage authority’s state law claims against state environmental agency and its officials arising out of authority’s failure to receive funding under the Clean Water Act) and Proffitt v. Davis, 707 F.Supp. 182 (E.D.Pa.1989) (federal district court lacked jurisdiction under RCRA and CWA to compel secretary of state environmental agency to enforce consent orders against dischargers of hazardous pollutants). Plaintiffs’ likelihood of success was thus undermined by the Commonwealth’s apparent immunity under the Eleventh Amendment and the EPA’s apparent sovereign immunity. Furthermore, the Court found that Plaintiffs had failed to demonstrate that they would incur irreparable harm in the absence of the requested injunctive relief. Although there had been testimony concerning the Plaintiffs’ various physical ailments, they had presented no medical testimony tying their ailments to toxins on their property, let alone toxins for which the Defendants could be held responsible, and the Court therefore found the Plaintiffs’ theory of causation entirely speculative. Further, the Court found that the state and federal Defendants would suffer irreparable harm if forced to undertake a variety of remedial measures based on Plaintiffs’ speculative injuries, particularly where the source of Plaintiffs’ injuries remained uncertain.
The DEP’s and EPA’s Dispositive Motions; Plaintiffs’ Petition for Mandamus; Discovery Disputes
From May through July, 1996, there was a flurry of activity as Defendants filed their respective motions to dismiss the Amended Complaint and Plaintiffs filed their briefs in opposition. Much of the Court’s attention, however, would be focused on the Plaintiffs’ on-going battles with the federal and Commonwealth Defendants.
On June 24,1996, the EPA’s OGC issued a final administrative determination in response to Plaintiffs’ FOIA claim. The OGC released portions of six disputed Technical Directive Documents (TDDs) and 4 internal office memoranda; however, as to all other documents previously withheld by the EPA, the Agency stood by its decision that the documents were exempt from disclosure under the FOIA exemptions previously claimed. With regard to the EPA’s open criminal file from its Criminal Investigations Division, the Agency determined that six reports of investigation (“ROIs”) with attached factual documents and one memorandum of interview (“MOI”) were arguably responsive to the Plaintiffs’ request. The EPA concluded that the factual attachments to the ROIs had previously been provided to the Plaintiffs. However, the Agency determined that the ROIs and MOI themselves should be withheld from disclosure under the theory that their release could reasonably be expected to interfere with law enforcement proceedings and that release of the MOI would also result in an unreasonable invasion of personal privacy as to the individual interviewed.
On July 22, 1996 Plaintiffs filed a motion to compel the EPA to turn over all of its documents relative to the Grine/Coombs Property investigation. [Doe. No. 45.] In particular, Plaintiffs complained that the EPA had failed to release complete and ac *325 curate test results of the water samples collected and radioactive testing conducted on their property on January 25, 1995 and February 9, 1995, respectively. Plaintiffs also alleged that the EPA had improperly withheld the results of sludge and/or water samples that were supposedly going to be collected from Coombs’s septic tank on February 8, 1995 and subjected to chemical analysis, as referenced in an EPA document known as a “Property Investigation Soil Sampling Plan.” Plaintiffs contended that the EPA had “deliberately concealed the existence of the results” and “exhibited conduct possibly contemptuous” of the Court’s previous order to release all non-exempt material by July 15, 1996.
In an attempt to resolve the issues raised in Plaintiffs’ motion to compel, the EPA’s OGC sent Plaintiffs’ co-counsel, Mr. Williams, a letter dated August 6, 1996 memorializing the EPA’s position as to the disputed information discussed in Plaintiffs’ motion. [See Doc. No. 52, Ex. A.] The letter reiterated the EPA’s position relative to the redacted portions of the disputed documents (i.e., the TDDs, entries in Zenone’s log book, interoffice memoranda, handwritten notices of Daniel Isales, Esq., and CID documents) that were being withheld on the basis of asserted FOIA exemptions. With regard to Plaintiffs’ claim that certain “sampling data” had not been turned over, the letter indicated as follows:
... As we discussed, all of the sampling data from tests conducted by EPA at the Grine property have been produced to you. Although EPA collected a large volume of water to perform its January 25, 1995 water test, this constituted only two (2) water samples. The complete results from these two samples were released to you on November 28, 1995. No other water samples were collected or tested.
Secondly, the radiation test conducted on February 9, 1995 is a routine scan test performed at the site on a direct reading instrument. This instrument does not generate any paper test results and does not electronically store any of its readings. Accordingly; no radiation test results exist, and any radioactivity readings noted by this test would have been reflected in the [pollution reports, known as] POLREPs, log book entries, or sampling trip reports previously released to you.
Finally, your motion to compel contends that sludge/liquid sampling data from the Coombs septic tank was not'released by EPA. As we discussed, EPA did not collect any sludge samples from the Coombs septic tank. Accordingly, no such documents exists.
(Id.) The correspondence invited Plaintiffs, if satisfied with the EPA’s explanation for these withholdings, to countersign the letter, return it to EPA’s counsel and move to withdraw the motion to compel. Plaintiffs, however, were not satisfied with the EPA’s explanation.
In addition to' their motion to compel, Plaintiffs filed a Petition for Writ of Mandamus on July 30, 1996 in which they (a) complained that the EPA had failed to respond to the alleged contamination of their water supply and (b) sought a judgment of mandamus requiring the EPA to pay for the restoration of consumable water on an emergency basis until such time as a more permanent solution could be reached. [Doc. No. 83.] Plaintiffs’ petition alleged that the EPA was informed on July 19, 1996 by a DEP agent that Plaintiffs’ well water had been infiltrated by fecal streptococcus and fecal coliform bacteria. They again claimed that they had not been given full and complete results of chemical testing performed on their water on January 25,1995 and that the EPA had failed to sufficiently abate the contamination problem.
The EPA responded by filing a motion to dismiss the mandamus petition as well as any other claims in which Plaintiffs sought to compel the EPA to take particular response actions or to conduct further investigations on Plaintiffs’ property. [Doe. No. 56.] The EPA objected that Plaintiffs’ mandamus petition was, in effect, nothing more than a second attempt by Plaintiffs to obtain a form of relief which this Court lacked jurisdiction to grant and which the Court had previously declined to grant by way of preliminary injunction. The EPA also filed a separate motion for summary judgment on the Plaintiffs’ FOIA claim in which it enumerated all of the documents which were being withheld on the basis of FOIA exemptions and dis *326 cussed its rationale for asserting the exemptions. [Doc. No. 53.]
On August 14, 1996, this Court held a status conference to discuss the particulars of Plaintiffs’ motion to compel and the EPA’s motion for summary judgment on the FOIA claim. Plaintiffs continued to insist that they were missing testing data relative to the water samples taken from the Grines’ property on or about January 25, 1995, radiological testing performed on the Grines’ property, and samples of sludge that had allegedly been collected from William Coombs’ septic tank. As to the water samples, Ms. Haagen-sen acknowledged that the Grines had received a large packet of materials from the EPA on May 18, 1995 which supposedly included an 11-page report relative to the January 25,1995 water samplings. Ms. Haagen-sen contended that, due to lack of pagination and pages being out of order, Plaintiffs could not confirm whether the entire 11-page report had been provided. In addition, Ms. Haagensen disputed the EPA’s assertion that only two water samples were taken from the Grine property inasmuch as Plaintiffs contended that numerous containers of water had been drawn from their system. As to the radiological scanning, Plaintiffs insisted that the technician performing the tests had jotted down the readings in a “yellow field survey book,” which they demanded be released. Plaintiffs also continued to insist, pursuant to the EPA’s “Property Investigation Soil Sampling Plan” of February 8,1995, that samples of sludge from Coombs’s septic tank had been collected for testing, yet the results' and underlying data had not been disclosed. Insofar as the EPA had withheld CID documents based on its position that their release could reasonably interfere with an on-going criminal investigation, Plaintiffs objected that they had received no prior documentation pertaining to an open criminal investigation relative to the Grine/Coombs properties. Indeed, Ms. Haagensen openly intimated that the EPA’s criminal investigation, insofar as it concerned Robert Grine as a potential source of the contamination, was a form of witness intimidation that was meant to retaliate against the Plaintiffs’ for their pursuit of the FOIA litigation. [Doc. No. 84 at pp. 44, 48-51.]
At the conclusion of the hearing, the Court ruled on Plaintiffs’ motion to compel by directing counsel for the EPA to check and/or confirm: (a) whether more than two water samples/tests were taken of the Grines’ water supply on January 25, 1995; (b) that the EPA’s 11-page report relative to these tests was in proper form and properly produced to the Plaintiffs; and (c) whether any samples or tests were in fact taken of the sludge from the Coombs’ septic tank. [Doc. no. 82 at pp. 53-54.] In all other respects, the Court denied Plaintiffs’ motion to compel without prejudice to be reasserted if, on a more fully developed factual record, Plaintiffs could establish that the information they sought was in fact being improperly withheld. The Court noted that the EPA had addressed these claims through Vincent Zenone’s declaration of August 12,1996, which was appended to the EPA’s brief in opposition to the motion to compel and in support of its motion for summary judgment on the FOIA claim (See Doc. No. 54, Ex. B.); the Court pointed out that Plaintiffs were free to conduct depositions relative to any contested factual issues if they so chose. [Id. at p. 54.] As to the Plaintiffs’ mandamus petition, the Court noted that it was hard-pressed to see from a jurisdictional standpoint how it could compel the EPA to do what Plaintiffs’ sought — i.e., compel the EPA to take essentially discretionary action — but the Court would await further briefing and assume for present purposes that Plaintiffs were proceeding in good faith. (Id. at pp. 62-63.) Ms. Haagensen responded that it was her belief that her clients’ lives were in danger and that the EPA had neglected at least “50 mandatory duties,” as supported by Third Circuit law. [Id. at p. 63.] The Court took this matter under advisement.
In its next status conference on September 16, 1996, the Court again entertained a detailed discussion concerning Plaintiffs’ on-going discovery disputes with the EPA. [Doc. No. 99.] The Court noted that it had “never seen a case” where the parties were so “mired in minutiae” such that “almost like individual chestnuts falling off a tree one by one by one by one, there is a continuous and ongoing dispute as to whether [information] was or was not turned over.” (Id. at p. 33.)
*327 The Court emphasized that it did not want to be in a situation where it was poised to rule on pending dispositive motions, only to have a party object that the record remained undeveloped because of critical materials not being turned over. The Court noted it was “hard-pressed” to “get a handle” on what Plaintiffs felt they were lacking, but invited Ms. Haagensen to provide a checklist so that the Court could resolve outstanding discovery disputes and get the case moving forward. (Id. at 34.) Ms. Haagensen responded that she was demanding from the EPA “[ejach test that’s been done on whatever medium, soil, water, what have you, with the technical directive documents which states what pieces of paper were filed with those test results. There is a logbook that was filed as a sample identification, location, date, time, name of sample, type of sample, for every single test that was performed, we do not have it.” (Id. at p. 35.) Paul Skirtish, Esq., counsel for the EPA, noted that only three specific discovery issues had been left open by the Court at the previous status conference, which he had followed up on, specifically: he was re-submitting to Plaintiffs a complete (and properly paginated) 17-page report which included all of the test data relative to the water samples that had been collected from the Grines’ property on January 25,1995, as well as a one-page memorandum from Brian Moran (a technician , employed by Weston) which evidently related to those tests; he had checked on the number of water samples taken from the Grines’ groundwater supply; and he had investigated whether there was additional EPA data relative to any water or soil samples taken from the Coombs Property.. [Id. at p. 25, 36.] Mr. Skirtish also represented that he would check with Marian Murphy, the chemist who analyzed the Grines’ groundwater samples, to verify the exact quantity of water received by her laboratory, [/d] Nevertheless, Ms. Haagensen now insisted that the EPA had also failed to turn over the “index” to the EPA’s administrative record as allegedly required by 40 C.F.R. § 300.800 . The following discussion ensued:
MR. NITCZYNSKI [counsel for the EPA]: Your Honor, I believe those are the regulations that I believe apply to sites that are on the national priorities list where EPA has made a determination of a removal action, remedial action or to order a potentially responsible party to conduct a cleanup.
MR. WOLFORD [counsel for the DEP]: Your Honor ... This is again the type of problem I keep running into with plaintiffs’ counsel is they don’t understand the way federal laws operate. The administrative record hasn’t been created here, it’s not a [Hazardous Sites Cleanup-Act] site, its not a CERCLA site. Why they would think this, they read something and then they try to apply it to everything, it’s just very frustrating.
THE COURT: The administrative record that I gather that you are looking for, so we’re on the same page here, Ms. Haagensen, is apparently not generated until such time as the governmental entity makes a determination that there is going to be lsome type of remedial action, is that correct?
MS. HAAGENSEN: Your Honor, under Section 300.41(a) which deals with waste action sites, environmental samples are to be collected, the lead agency shall develop sampling analysis plans that shall provide a process for obtaining data. The next paragraph says that the field sampling plan — sample type of analysis has to be created. We have major problems with every single piece of documentary evidence. For example, I have nothing that gives us location of samples taken from the [Coombs] drums. We don’t have that piece of information, that is crucial. The problem with the water sample is that the two documents that have been filed accompanying the 11 pages of test results indicate that many more than the samples were taken than were indicated in their documents and the test itself does not match up with these, either one of those reports.
MR. SKIRTISH [counsel for the EPA]: [Plaintiffs’] counsel has just an incredible problem of accepting declarations of people, this is why I’m just going to try and point this out. There were two tests that were done on [the Grines’] water. And there’s a person, Vince Zenone, who’s at *328 tested to that under penalty of perjury. He just said it was true and correct to the best of his knowledge. I’m going to find out from Marian Murphy, I can tell the court right now there was a quantity of water that was taken, but not every drop of that water was tested. There were two tests done on the quantity of the water extracted from the Grine property. I’ll even provide a declaration from Marian Murphy as to what the quantity is so there’s no haggle. That’s all I have. She has every test that EPA has in their file. I’m representing that to the court that I have no more paper, I have no more paper, I have nothing else to give her on these water tests, on these ground tests.
THE COURT: Ms. Haagensen, I understand your desire as is true of any zealous advocate to make sure you have obtained a complete paper record. Everything that’s within the possession of your opponent. But you can’t get something that* doesn’t exist if you’re told that it doesn’t exist.
MS. HAAGENSEN: The problem is that Mrs. Murphy has stated that it does exist. In her report she states that certain methods were used to analyze certain samples. When you look at the 11 page report, the methods used, they’re at the top of the page. He will say, for example, we used method 608 to test such and such and such and such. When you try to find it, it isn’t in the 11 pages, another method is listed. It states certain methods were used, they are not in that report. That does create a problem.
THE COURT: If they don’t have them, they don’t have them.
MS. HAAGENSEN: They stated they do have them and they’re missing from the report.
THE COURT: There’s apparently an affidavit that was filed that says they don’t have them. I don’t know where that leaves us except I have no reason to believe that the affidavit isn’t true. All right.
MS. HAAGENSEN: We have to say we have severe problems with an affidavit, very detailed, very technical but very troubling.
THE COURT: Ms. Haagensen, you may very well. But we are about to move on and now I’m going to turn my attention to the pure legal aspects of this case. I’m also going to turn my attention to the Rule 11 aspects of this case. And I’m going to be taking a very close look at that as well
(Doc. No. 99, at pp. 37-40.)
On October 22, 1996, Plaintiffs filed their own motion for Rule 11 sanctions against the EPA based on alleged “serious factual errors” in the May 28,1996 affidavit of Vincent Zenone (previously submitted to the Court in connection with the EPA’s opposition to Plaintiffs’ motion for preliminary injunction [see Doc. No. 29]) and the April 24, 1994 report of Marian Murphy, upon which Zen-one’s declaration was partially based. [See Doc. No. 68.] Plaintiffs also alleged “serious factual errors” in the reports of Ms. Murphy dated February 13 and March 6, 1995. Without any supporting expert documentation or other interpretive evidence, Ms. Haagensen, on behalf of Plaintiffs, asserted three examples of these “serious factual errors,” to wit:
The compound identified as ortho-xylene at CAS No. of 75-01-04 is misidentified; ortho-xylene’s correct CAS No; is 95-47-6. The chemical abstract service number is unique for each chemical; it is an impossibility for two different chemicals to share the same CAS number. Accordingly, the chemical identified as ortho-xylene at CAS No. 75-01-04 is in all probability vinyl chloride, an extremely hazardous waste.
íjí #
The Murphy report of April 24, 1995, states that methylene chloride and toluene were not detected in the samples. In fact, methylene chloride was detected at a concentration of 74,000 ug/L and toluene was detected at 520,000 ug/L in Sample No. 9511809V. These concentrations far exceed the “blank” concentrations at 5 ug/L (toluene) and 8 gu/L (methylene chloride.)
Thirty-six (36) unknown hydrocarbons are reported in Ms. Murphy’s report of April 24, 1995. It is impossible for any expert to assess health or exposure risks without knowledge of the chemical compounds involved. Ms. Murphy states that certain of the tenatively [sic] identified *329 compounds were discovered in both “blanks” and samples. She states that the scored or crossed out tenatively [sic] identified compounds were discovered in both “blanks” and samples and were in her report considered “non-detect.” However, if an “unknown” were found in a blank, Ms. Murphy would have no way of knowing which unknown in the sample data to eliminate.
[Doc. No. 68 at p. 2-3.] Plaintiffs further asserted that the EPA had ignored the Court’s order to release all data pertaining to radiation testing, including data from which the background standards were derived and the logbook or field notes of Weston employee Brian Moran relative to the radiation data obtained from the Grines’ property on February 9, 1995. As a result, Plaintiffs sought to strike “all of Defendant EPA’s denials ... from the record” and suggested that the Agency should be held in contempt and sanctioned for its “deliberate deception.” (Id. at p. 3.)
Six days later, the parties were again before the Court on a telephonic status conference initiated at Plaintiffs’ behest. [Doc. No. 100.] According to Mr. Williams, heavy rains from the previous day had caused a “rubber eement”-type odor to descend upon the Plaintiffs’ property, resulting in Plaintiffs experiencing shortness of breath, rashes, headaches and nausea and allegedly causing their dog to suffer seizures. Since then, the air had apparently cleared somewhat and Plaintiffs were feeling better. Nevertheless, then-counsel contacted the Court for the purpose of obtaining some type of compensation that would enable Plaintiffs to move out of then-home, since Margaret and Robert Grine feared they might not survive another such episode. Matthew Wolford, Esq., counsel for the DEP, objected to Plaintiffs’ failure to contact the DEP’s emergency response team in the first instance, which might have allowed for a timely response by the Department. Mr. Wolford noted that, in the past, the DEP has had difficulty verifying the Plaintiffs’ environmental complaints and he feared that, it now being a day later, a similar result might occur. Nevertheless, it was agreed that a DEP official would visit the Grines’ property to investigate their current status. [Id. at pp. 1-9.] During this status conference the Court scheduled a hearing date of November 19,1996 for Plaintiffs’ motion for permanent injunction and indicated that it would rule on the Defendants’ pending dispositive motions prior to the hearing. (Id. at pp. 10-11.)
Two weeks later on November 13, 1996, the Court held another status conference to discuss the propriety of the permanent injunction hearing in light of the Plaintiffs’ claim for monetary damages as set forth in the Amended Complaint. [Doe. No. 101.] The Court concluded that, because the damages claim needed to be submitted to a jury, it would be inappropriate to hold a separate evidentiary hearing relative to Plaintiffs’ request for a permanent injunction in advance of a jury trial. The Court resolved that a pretrial schedule should be established and the case set down for a jury trial at the soonest available date; however, the Court would first rule on the Defendants’ pending motions to dismiss the Amended Complaint in order to determine which parties and/or claims would be appropriately subjected to further litigation. (Id. at pp. 4-7, 11-12.) Ms. Haagensen objected to this plan on the ground that the Court needed to first address Plaintiffs’ claims that the government had produced falsified evidence:
MS HAAGENSEN: As stated in our recent argument, the evidence itself is falsified, therefore, the situation our clients are in may be even worse than we originally supposed. It may be even worse than was first apparent if the evidence itself is inaccurate that has been put in front of you, therefore, our clients may not be able to sit where they are for another three or four months. We were hoping that these questions would be dealt with next week on the 19th?
THE COURT: Well, I gather. But the fact of the matter is the court didn’t draft the complaint, you did. The plaintiffs have requested injunctive relief and legal relief, damage relief and you’ve requested a jury trial.
MS. HAAGENSEN: When we drafted the complaint, we were not aware that the evidence was actually falsified.
THE COURT: I have made no determination on the record that there has been any falsification of evidence in the case.
*330 MS. HAAGENSEN: We want it to be determined in a hearing with people under oath.
THE COURT: And you’ll have an opportunity to do that. But you’re not going to have an opportunity to do it on the 19th. And you’re also going to have an opportunity by virtue of a discovery schedule that is going to be set in the case to fully and deeply explore all of those contentions relative to alleged falsification of documents. And you’re going to have a standard amount of discovery to do that. .
:J< ifc #
MS. HAAGENSEN: It seems to us the evidentiary problems has to be ruled on before a motion to dismiss can be ruled on. We haven’t had a hearing on falsified evidence, that’s our position.
:¡?
THE COURT: With respect to the claim of falsification of evidence, of course, we’re looking at everything, but, Ms. Haagensen ... the fact of the matter remains that with respect to at least the governmental defendants, in the 12(b) papers here, they are asserting in large measure legal defenses which are not fact dependent. That being the case, although I am not only willing, but I think obligated to make sure that an evidentiary hearing is not required to the extent that it may implicate any of the defenses, I’m hard pressed to see, for instance, how a claim of falsification of evidence would cut one way or the other on an 11th Amendment defense.
MS. HAAGENSEN: Your Honor, if we may respond to that. There’s an obvious conflict of interest that raises Constitutional problems if the EPA and its investigator did the investigation and made the determination on which your judgment is based when they are now adversary to us, that is most definitely a Constitutional conflict. It is definitely a Constitutional problem if we are not afforded due process.
THE COURT: You lost me on that, I must say. As I said, I’m going to take a look at the issue. It’s enough for you to know now that the hearing is canceled on the 19th. If the court determines as it reviews these matters that an evidentiary hearing is necessary with respect to the allegations concerning falsification of testimony, you will be so informed in a timely manner and a hearing will be conducted if I so decide—
[Doc. No. 101, at pp. 8-9,12-15.] 9
That same day, the EPA filed its response in opposition to the Plaintiffs’ motion for Rule 11 sanctions. [Doc. No. 75.] In its response papers, the EPA vigorously disputed the “serious factual errors” allegedly contained in the May 28, 1996 Declaration of Vincent Zenone and the underlying reports of Marian Murphy. The EPA contended that Plaintiffs’ allegations of “serious factual errors” were not only unsubstantiated by any expert testimony, but also speculative and based on Plaintiffs’ uninformed misunderstanding of the analyses utilized to produce the Murphy memoranda and the materials supporting it. In support of its position, the EPA appended declarations of Marian Murphy and Vincent Zenone dated November 12, 1996 explaining that the perceived “serious factual errors” were, for the most part, not errors at all or, at most, minor clerical errors which in no way impacted on Vincent Zen-one’s conclusions about the inadvisability of a removal action on the Grines’ property.
On November 29,1996 Plaintiffs filed a 29-page reply brief relative to their Rule 11 motion which attacked the EPA’s explanations of the alleged “serious factual errors” in Ms. Murphy’s reports. [Doc. No. 77.] Appended to Plaintiffs’ reply brief was an affidavit from one Gordon R. Johnston, Ph.D, a *331 chemical consultant, who disputed certain highly technical aspects of Ms. Murphy’s November 12, 1996 declaration. Among other things, Dr. Johnston criticized Ms. Murphy’s declaration on the grounds that there were “simply too many unknown and tentatively identified compounds” reported by Ms. Murphy; thus, Mr. Johnston “insisted” that the “original mass spectral data be provided to plaintiff.” [Doc. No. 77, Johnston affidavit at p. 1.] Dr. Johnston also criticized Ms. Murphy’s “calculations used to convert concentrations in units of ug/Kg -to ug/L.” [Id] Based on his review of lab data, Mr. Johnston opined that one of the drums on the Coombs Property from which samples had been analyzed contained amounts of toluene well above the values that would indicate “immediate danger to life and health (‘IDLH’)”. Mr. Johnston further opined that there was “a distinct possibility” that the concentrations of meta-xylene or para-xylene also exceeded the relevant IDLH value. [Id. at p. 2-3.] Mr. Johnston concluded:
The plaintiffs have been exposed to a number of extremely hazardous chemical compounds. Synergistic effects have been observed with regard to the exposure of individuals to more than one chemical compound____ There is appar-
ently no data available which describes the synergistic effects of all the hazardous chemicals to which the plaintiffs have been exposed. In my professional opinion, therefore, the combined effects of all these hazardous chemicals have been extremely detrimental to the health of the plaintiffs.
[Id. at p. 3.]
The EPA filed its sur-reply to the Plaintiffs’ Rule 11 motion on December 23, 1996. [See Doc Nos. 80.] In its sur-reply, the EPA contended that Plaintiffs’ reply brief had failed to address the procedural deficiencies in their Rule 11 motion, instead raising new matters not previously addressed by any of the parties and making it “even more clear that they are using the Sanctions Motion as a guise to argue the merits of the case.” [Doc. No. 80 at p. 1, n. 1.] The EPA appended additional declarations from Marian Murphy and Nancy Rios Jafolla, a toxicologist employed by EPA’s Region III Hazardous Waste Management Division (dated December 12 and December 19, 1996, respectively). These affidavits disputed Dr. Johnston’s assertions in several respects 10 and generally corroborated the original conclusions of Vincent Zenone concerning the inadvisability of a removal action at the Grines’ property. [Id. at Attachments 1 and 2.]
The Court’s Memorandum Opinion of December 27, 1996
On December 27, 1996, this Court issued a 56-page memorandum opinion ruling upon the Plaintiffs’ petition for a writ of mandamus, the Plaintiffs’ motion for Rule 11 sanctions, the EPA’s motion to dismiss the mandamus petition, and the EPA’s motion for summary judgment on the POIA claim. [Doc. No. 81.] With respect to Plaintiffs’ mandamus petition, the Court concluded that it lacked jurisdiction to compel further responsive action by the EPA relative to the Grines’ water supply. Initially, the Court observed that the only claim asserted against the EPA in the Amended Complaint was Plaintiffs’ FOIA claim; hence, there was no cause of action that would allow for the form of relief that Plaintiffs sought in their mandamus petition. We next concluded that, even if Plaintiffs had asserted causes of action *332 against the EPA under CERCLA, RCRA and the Clean Water Act, those statutes did not provide a sufficient waiver to overcome the government’s sovereign immunity, since the “citizen suit” provisions of those statutes permit suits against the EPA Administrator only insofar as the citizen plaintiff seeks to compel the Administrator to undertake non-discretionary actions. We concluded that the relief sought by Plaintiffs in this case — i.e. a writ directing the EPA to pay for an alternative water source for Plaintiffs and to take additional investigatory and/or remedial measures relative to their water contamination— involved discretionary functions that were not the appropriate subject of a citizens’ suit or a mandamus petition. Although Plaintiffs insisted that these duties involved purely ministerial decision, we disagreed and found the Plaintiffs’ cited authorities insufficient to establish a jurisdictional basis for the requested mandamus relief. 11 The Court therefore denied the Plaintiffs’ mandamus petition and granted the EPA’ motion to dismiss any claims pursuant to which Plaintiffs sought to compel the EPA to undertake certain responsive action and/or further investigations of Plaintiffs’ property.
The Court next addressed the EPA’s motion for summary judgment on Plaintiffs’ FOIA claim. In support of its motion, the EPA submitted declarations from two agents involved in responding to the FOIA request: (A) Milton H. Taylor-Robinson, Attorney-Advisor in the EPA’s Office of Criminal Enforcement, Forensics and Training, Office of Enforcement and Compliance, and (B) Vincent Zenone. Mr. Taylor-Robinson’s declaration established EPA’s rationale for withholding certain documents contained in the EPA’s CID file, while Mr. Zenone’s declaration addressed the EPA’s reasons for withholding certain Region III documents. At issue were five (5) distinct categories of information sought by Plaintiffs: (i) data relative to the testing of water, soil and sludge samples allegedly taken from the Grine and Coombs properties; (ii) redacted portions of the Mr. Zenone’s logbook; (iii) six Technical Direction Documents (TDDs) issued to Roy F. Weston, Inc. pursuant to the EPA’s Technical Assistance Team Contract; (iv) redacted portions of four interoffice memoranda in the form of e-mail messages distributed through EPA’s Region Ill’s Local Area Network and one page of handwritten notes generated by Daniel Isales, Assistant Regional Counsel for Region III; and (v) various documents from the EPA’s CID file, to wit: fourteen entries from Mr. Zenone’s log book, six Reports of Investigation, and one Memorandum of Interview.
Insofar as the first disputed category was concerned, this Court reviewed the parties’ summary judgment papers and concluded that there was no genuinely disputed issue of material fact as to the EPA’s representation that it had turned over all information within its file relative to (a) testing of the two water samples collected from the Grines’ property on or about January 25, 1995 12 and (b) testing for radioactive substances which was conducted on the Grines’ property in early 1995 using a hand-held radioactivity scanner. 13 *333 As to the sludge samples allegedly taken from William Coombs’s septic tank, the EPA presented unrebutted evidence that, contrary to a reference made in the February 8, 1995 “Property Investigation Soil Sampling Plan,” no samples were in fact ever collected and, hence, no records existed relative to those tests. 14 Based on its review of the record, the Court concluded that the EPA was entitled to summary judgment on this claim.
, The next disputed FOIA category concerned portions of Vincent Zenone’s logbook which had been redacted on the ground that certain portions involved other site investigations unrelated to the Grines’ property. . Plaintiffs maintained that, contextually, it appeared the redactions pertained to their property. This Court ordered the EPA to produce the log book for in camera inspection and took that portion of the EPA’s motion under advisement.
The Court next considered the disputed Technical Direction Documents which had been redacted in part to conceal information about Weston’s direct labor rates, indirect cost rates, and key personnel. The EPA claimed that this information was exempt from disclosure under 5 U.S.C. § 552 (b)(4), pertaining to matters that are “trade secrets and commercial or financial information obtained from a person and privileged and confidential.” Upon review of the record, the Court concluded that these documents met the criteria for exemption under National Parks and Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C.Cir.1974). The Court therefore granted the EPA’s motion for summary judgment with respect to this category of documents.
As to all of the remaining documents, the Court concluded that an in camera review was appropriate in order to better determine whether any of the EPA’s claimed exemptions were justified as a matter of law. Accordingly, the Court took the EPA’s motion under advisement pending its review of the remaining disputed documents.
Finally, the Court addressed Plaintiffs’ motion for Rule 11 sanctions, which was premised partly on the “serious factual errors” allegedly contained in Vincent Zenone’s May 28, 1996 declaration and the reports prepared by Marian Murphy and partly on the EPA’s alleged failure to release data pertaining to radiation testing on their property. The Court began by observing that Plaintiffs had violated Rule ll’s mandatory 21-day notice period, which is designed to give the offending party an opportunity to voluntarily correct any deficiencies in the challenged submission. In addition, the Court also found Plaintiffs’ motion to be untimely, in that it had been filed some five months after the EPA had submitted Zen-one’s declaration in opposition to the Plaintiffs’ preliminary injunction motion. Substantively, the Court found that sanctions were not warranted because its review of the record showed that the EPA had acted in an objectively reasonable manner in relying on the challenged papers. And, insofar as Plaintiffs were complaining of the EPA’s failure to disclose information relating to the radiation reconnaissance performed by Weston employee Brian Moran, the Court found no evidence in the record to support a finding that the EPA ever had custody of the personal logbook or notes belonging to Mr. Moran. Furthermore, the Court found that the “EPA’s actions in attempting to locate any such logbook have been more than objective *334 ly reasonable under the circumstances.” [Doe. No. 81 at p. 56.] The Plaintiffs’ motion for Rule 11 sanctions was therefore denied.
The Court’s Memorandum Opinion Dated December 81, 1996
On December 31, 1996 the Court addressed the Commonwealth Defendants’ motion to dismiss in a separate 34-page memorandum opinion and order. While the Commonwealth asserted several different bases for dismissal, 15 this Court granted the motion solely on the basis that the Commonwealth was immune from this lawsuit under the Eleventh Amendment. Noting that there are only two situations when a state can be sued in federal court — i.e., where the state has expressly waived its immunity or, alternatively, where Congress had validly and unequivocally abrogated Eleventh Amendment immunity — the Court explained at length why neither exception pertained in this case. As to the latter exception, the Court opined that Congress had not attempted to abrogate Eleventh Amendment immunity under the citizens’ suits provisions of RCRA, CERCLA and CWA, nor could it validly do so under the Supreme Court’s ruling in Seminole Tribe of Florida v. Florida, 517 U.S. 44 , 116 S.Ct. 1114 , 134 L.Ed.2d 252 (1996). Having concluded that Plaintiffs could not sue the DEP in federal court, the Court next concluded that Plaintiffs had failed to state a basis for relief against Defendants Wozniak and Holler under Ex Parte Young, 209 U.S. 123 , 28 S.Ct. 441 , 52 L.Ed. 714 (1908), for two reasons: (1) Plaintiffs’ complaints were directed at wholly retrospective events (as opposed to on-going violations of federal law), and (2) Plaintiffs sought to compel action by the DEP officials which was purely discretionary, as opposed to ministerial, in nature. The Court next concluded that the Eleventh Amendment also barred Plaintiffs’ state law claims against the Commonwealth Defendants under Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89 , 104 S.Ct. 900 , 79 L.Ed.2d 67 (1984). We rejected Plaintiffs’ assertion that the Pennsylvania Hazardous Sites Cleanup Act evidenced the Commonwealth’s consent to be sued under that Act in federal court. We also rejected the argument that Plaintiffs’ allegations rendered the Commonwealth Defendants liable as “owners” or “operators” of a “hazardous site” under the authority of FMC Corp. v. U.S. Dept. of Commerce, 29 F.3d 833 (3d Cir.1994). Based upon its Eleventh Amendment analysis, the Court dismissed all claims against the Commonwealth Defendants with prejudice.
On January 29, 1997 Plaintiffs took a consolidated appeal from the Court’s orders of December 27 and 31, 1996 (“Appeal No. 1”), C.A. No. 97-3083. [Doc. No. 87.]
With a view towards scheduling a Rule 16 conference and establishing a pretrial case management schedule, the Court turned its attention to the remaining dispositive motions. On March 31,1997 the Court ruled on Defendants Yost’s and William Coombs’s motions to dismiss the Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6). Yost’s principal argument for dismissal was that, at most, she was a mere passive landowner who had had no involvement with the contamination site. The Court nevertheless concluded that Plaintiffs’ allegations, liberally construed, asserted Yost’s active involvement in the unlawful handling, storage, and disposal of hazardous pollutants. The Court denied her motion on the ground that Yost’s involvement (or noninvolvement) in the alleged unlawful conduct and her alleged status as part owner or operator of the “site” must be assessed on a more fully developed record by way of a motion for summary judgment, if appropriate. In other respects, the Court concluded that plaintiffs’ averments, though at times inartfully pled, were sufficient to survive a Rule 12(b)(6) motion. Because Coombs’s motion to dismiss was essentially an adoption of Yost’s motion, the Court similarly denied Coombs’s motion. [Doc. No. 103.]
On April 11, 1997, the Court ruled on the motion to dismiss filed by Tionesta Borough *335 and Ronald Hall, President of the Borough Council (collectively, the “Borough Defendants”). The Court dismissed Plaintiffs’ RCRA, Clean Water Act and CERCLA claims against the Borough Defendants insofar as those claims were premised upon the Defendants’ alleged failure to enforce local sewage laws or take other regulatory action; however, it denied the motion to dismiss these claims to the extent Plaintiffs had alleged more active involvement on the Defendants’ part in “directing” disposal activity and/or acting in concert to cause the unlawful disposal of hazardous wastes at the Coombs Property. The Court also considered Plaintiffs’ state law claims against the Borough Defendants for infliction of emotional distress (Count IV), nuisance (Count VI) and strict liability (Count VII). The Court concluded that the Borough itself was entitled to immunity from these claims under the Political Subdivision Tort Claims Act, 42 Pa.C.S.A. §§ 8541 et seq.; however, the motion to dismiss was otherwise denied as to Plaintiffs’ state law claims. Finally, the Court addressed the Borough Defendants’ assertion that Plaintiffs had failed to satisfy the notice of suit requirements under RCRA, CWA, and CERCLA, which are mandatory and jurisdictional in nature. 16 We denied the Defendants’ motion on this ground without prejudice to be reasserted via a Rule 56 motion, if appropriate, following the development of a more complete record clarifying, through affidavit or other appropriate documentation, what notice was provided, when it was provided, and to whom it was sent. [Doc. No. 105.]
Despite the interlocutory nature of this Court’s April 11, 1997 memorandum opinion and order, Plaintiffs filed a notice of appeal from the ruling on May 12, 1997. [Doc. No. 108.] The appeal was docketed as C.A. No. 97-3277 (“Appeal No. 2”).
On July 17, 1997, the Court held a status conference to discuss the procedural posture of the litigation. [Doc. No. 119.] The Court noted that Plaintiffs’ interlocutory appeals, which involved dismissals of less than all parties to the case and less than all of Plaintiffs’ claims, were complicating the movement of the case. (Id. at p. 5.) In particular, the pending appeals presented questions about this Court’s jurisdiction to address those aspects of the FOIA claim still pending before it on in camera review. (Id. at pp. 6-7.) Adding to the confusion was the fact that Plaintiffs had issued a subpoena duces tecum upon Vincent Zenone on December 30, 1996, noticing his deposition and directing him to produce “[a]ll relevant documents, reports, exhibits and written analysis which are products of your supervised investigation as on-scene coordinator of the Coombs and Grines sites ... which were not heretofore suppl[i]ed voluntarily or per F.O.I.A.” [Doc. No 90, Ex. A.]. On February 4, 1997, the EPA had filed a motion for a protective order in which it sought to bar all discovery (particularly Mr. Zenone’s deposition) and quash the December 30, 1996 subpoena. (See Doc. 89 and 90.] The EPA took the position that it was now effectively dismissed from the case inasmuch as the only aspect remaining relative to Plaintiffs’ FOIA claim was this Court’s in camera review of the remaining withheld documents and a ruling as to whether or not they need be turned over. Accordingly, it was the EPA’s view that Plaintiffs could not notice the deposition of Mr. Zenone without first complying with the regulations set forth at 40 C.F.R. § 2.401 , which address situations where the deposition of an EPA agent is sought for use in connection with litigation involving only private parties. Counsel for EPA also urged that the subpoena should be quashed because of various procedural deficiencies. The Court ruled that the subpoena would be quashed, as Plaintiffs’ counsel conceded that it had been issued out of the wrong court. (Id. at p. 15.) Nevertheless, in the interest of proceeding with arguably relevant discovery, the Court permitted Plaintiffs to cure that deficiency, reissue the subpoena from the proper court, and arrange a mutually convenient time for Mr. Zenone’s deposition. (Id. at pp. 14-15.) Plaintiffs’ counsel indicated that they would do so immediately. (Id. at p. 15.)
*336 On August 28, 1997, the Third Circuit issued orders in C.A. Nos. 97-3083 and 97-3277 denying Plaintiffs’ appeals (“Appeals Nos. 1 and 2,” respectively) for lack of appellate jurisdiction. [Doe. Nos. 124-25.] With the issue of this Court’s jurisdiction now cleared up, the Court proceeded with its in camera review of the remaining disputed FOIA documents.
On October 10, 1997, this Court issued its ruling on those aspects of the EPA’s motion for summary judgment that had formerly been taken under advisement. [Doc. No. 130.] The Court reviewed the unredacted version of Mr. Zenone’s logbook, which consisted of over 150 pages. The Court concluded that, with the exception of two brief entries that made incidental reference to the Plaintiffs’ case, all of the information omitted as unresponsive did, in fact, concern activities on other sites unrelated to the Grine and Coombs Properties. The Court allowed for the disclosure of the two incidental entries but observed that, notwithstanding their omission, “it [was] apparent that the government took great care to provide all portions of the log[book] (not otherwise claimed to be privileged) that ma[d]e even incidental reference to the Grines’ case.” [Doc. No. 130, p.-5.] The Court then turned to the EPA’s interoffice memoranda and the handwritten notes of Daniel Isales which had been withheld as “executive privilege” or “attorney work product” materials pursuant to 5 U.S.C. § 552 (b)(5). The Court ruled that the internal office memoranda were properly exempt from disclosure but the notes of Mr. Isales should be produced to Plaintiffs. Finally, the Court considered various documents from EPA’s CID file which were withheld as materials whose disclosure could reasonably be expected to interfere with law enforcement proceedings under § 552(b)(7)(A). These documents included fourteen (14) entries from Mr. Zenone’s log book, six (6) Reports of Investigation compiled by Special Agent Martin Wright, and two (2) Memoranda of Interviews drafted by Special Agent Wright. The Court found that these documents were not so sensitive that they would likely interfere with any on-going criminal investigation and, thus, it concluded that the government had failed to meet its burden of establishing a valid exemption. As for the two memoran-da of interviews — one of which concerned Wright’s interview with William Coombs on September 11, 1995 — the Court further found that there was nothing in these documents that was so sensitive as to constitute a significant invasion of privacy to those persons interviewed. Accordingly, it ordered the production of all the disputed documents from the EPA’s CID file.
Plaintiffs’ Motion for Summary Judgment and Related Motions
While Plaintiffs’ initial appeals were pending before the Third Circuit, Plaintiffs filed their motion for partial summary judgment, seeking to establish Defendants Coombs’s and Yost’s liability under RCRA, the Clean Water Act, CERCLA, the PHSCA and various state common law claims. [See Doe. No. 113.] In support of their motion for summary judgment, Plaintiffs submitted videotapes of their own property and the Coombs Property, several affidavits from various lay witnesses, and technical lab data which they believed established each of their claims as a matter of law. The videotape of the Coombs Property generally showed that, during 1994-95, the camp was in a state of some disrepair with various barrels and debris strewn about the grounds. Present on the property were at least two barrels labeled as containing some type of lubricant and an overpack drum and lid embossed with the trademark “Enviropaek,” the name “Essex Environmental Industries, Inc.,” and the number “DOT-E 9775.” Aso present on the Coombs Property was a burn barrel of about 55 gallon size. Various other debris, such as five gallon plastic jugs, piping, a cast iron bathtub, and at least one refrigerator/freezer were scattered about the property along the eastern border. Plaintiffs’ video of their own property depicted two dead field mice and a dead rabbit as well as some areas of stressed or dying vegetation. According to the Grines, these incidents occurred in the area of their wet weather spring directly down-gradient from Coombs’s camp, thus permitting an inference that hazardous substances flowed from Coombs’s camp onto the Grines’ property, killing the vegetation and small animals.
*337 Plaintiffs submitted a number of affidavits from lay witnesses — principally Robert Grine — who claimed to have witnessed unusual phenomena occurring on the Grine and/or Coombs properties. Robert Grine attested that he has periodically observed surface run-off originating from a rock pile on the Coombs and Yost properties which emitted a foul chemical odor and a rainbow or white foam sheen and which wended its way down to the Grines’ property. Mr. Grine also claimed to have witnessed Coombs receive numerous truck loads of drums, cans and other debris to his camp. He claimed that these drums at times appeared to be overflowing with a thick black substance which would stain the surrounding ground area and which emitted the same chemical odor as that which accompanied the run-off on his property. (Id. at ¶ 2.) In addition, Robert Grine alleged that he had witnessed numerous overpack drums, steel drums and other containers oii the Coombs Property, some of which appeared to contain substances and others which appeared to be stained, rusted, or corroded as if from usage and/or drainage of a substance. Mr. Grine represented in his affidavit that he has observed sewage flows emanating from the Defendants’ properties: one flow was allegedly located on the eastern margin of Yost’s property just below the aforementioned rock pile and debris and, according to Mr. Grine, emanated from an overflow of William Coombs’s undersized septic tank; the other, located on the western margin of the Yost tract, allegedly emanated from an outlet of a direct discharge pipe. Mr. Grine averred that, since the Spring of 1995, he has observed a number of flows from both areas, many times accompanied by a rainbow or white sheen and a strong odor of rubber cement. According to Mr. Grine, these areas — all of which are allegedly down-gradient from the overflowing drums on Coombs’s property— were tested by the DEP and found to contain hazardous chemicals. (Id.)
Mr. Grine further stated in his affidavit that many of the hazardous chemicals which had been detected around his home are “well known for their strong aggressive nature.” (Grine Aff. at H11.) He discussed at length the properties of some of these chemicals and expounded on the damage to his home allegedly resulting from this “unrelenting chemical attack.” (Id.) He averred that his dog had died and that his family has suffered physical discomfort as a result of exposure to chemical toxins. (Id. at ¶¶ 12-13.) Plaintiffs also submitted affidavits from other fact witnesses who generally corroborated many of Robert Grine’s allegations, especially with regard to their observations of chemical odors, withered or dying vegetation on the Grines’ property, run-off water with an iridescent quality, and the presence of drums and other litter on the nearby Coombs Property.
Finally, Plaintiffs submitted technical data in the form of chemical or biological analyses of numerous water and soil samples taken from the Coombs and Grine Properties both by government agents and by Robert Grine himself. Although the Plaintiffs submitted this evidence to buttress their claim that harmful contaminants had polluted their property, they provided no expert report or affidavit interpreting this lab data or placing the results into a meaningful context.
In their briefs opposing the Plaintiffs’ motion, Defendants Coombs and Yost appended various materials generated by the investigating governmental agencies as well as several counter-affidavits. (See Doc. Nos. 127-29.] Ronald Coombs, who was both William Coombs’s son and appointed representative through a power-of-attorney, submitted affidavits from himself and Ronald Lewis Kuis, Esq., a registered professional engineer and practicing environmental lawyer. In his own affidavit, Ronald Coombs averred that his father was unable to provide any meaningful information relative to the litigation, as he had been suffering from dementia since late 1995. Ronald asserted that his father had not returned to the camp site since the Plaintiffs began “harassing” him in 1994 and that, for all intents and purposes, the camp had been abandoned. He stated that his father obtained the drums from a friend and had used them as a cistern for water and/or oil, but claimed the drums had since been removed and properly disposed of by an independent contractor. According to Ronald Coombs, the drums never held more than two gallons of oil at any time and they were *338 never used to store hazardous or toxic materials. In addition, Ronald acknowledged that the Coombs Property had at one time experienced problems with the sewage system and septic tank; however, he claimed that this problem was resolved in 1995 when the old tank was replaced.
Mr. Kuis’s affidavit indicated that he had reviewed reports, videotapes, and other evidence relevant to the Grines’ environmental complaints. Based on this data, Mr. Kuis opined that: (a) there is no evidence of chemical staining or chemically stressed vegetation on the Coombs’s Property in the summers of 1994 and 1995; (b) excavation activities at the Coombs Property in summer of 1995 showed no evidence of environmental contamination in any surface or sub-surface soil; and (c) there was no apparent environmental contamination emanating from the Coombs Property in the summers of 1994 and 1995.
In support of her oppositional papers, Yost submitted an affidavit generally denying any involvement with the alleged storing or disposal of hazardous wastes on her property or that of her father. She denied even being at those properties after 1990. She stated that her father had not visited the campsite since late 1994 or early 1995 and had never conducted activities on the parcel conveyed to her. Yost also submitted an affidavit of Randall Spence, Sewage Enforcement Officer for the Borough of Tionesta, who had allegedly visited the Coombs and Yost properties in August and November 1994 in connection with his review of the residential sewage facilities of the Borough. Mr. Spence asserted that Coombs’s septic tank was replaced with a holding tank in June of 1995 and, since that time, had been in compliance with applicable sewage-related regulations. During his visits to the Coombs Property, Mr. Spence found no evidence of a leech field or discharge pipe, nor did he notice any chemical odors or see evidence of sewage or chemical discharges. Based on his inspection of the Yost property, Mr. Spence considered it is unlikely that any discharge pipe or leech field connected to Coombs’s septic tank would have extended onto Yost’s lot. He also claimed to have found no evidence of debris or pollutants on Yost’s property, which was undeveloped at the time.
Plaintiffs subsequently filed a 5-page motion and 29-page supporting memorandum asking this Court to strike the responses filed by Coombs and Yost in opposition to the Plaintiffs’ summary judgment motion or, in the alternative, to strike the affidavits of Ronald Coombs, Mr. Kuis, Yost, and Mr. Spence. [Doc. No. 135.] Plaintiffs objected to the affidavit of Ronald Coombs on the ground that it was not based on personal knowledge and that it contained “flagrant misstatements and contradictions” which “shock the conscience.” [PL’s Mot. (Doc. No. 135) at 112.] For example, Plaintiffs alleged that Ronald Coombs’s testimony concerning his father’s dementia was “without a doubt false” (Pl.s’ Mem. at p. 12) based on evidence from William Coombs’s Orphans Court proceedings which Plaintiffs felt proved that William Coombs was still of sound mind. Plaintiffs challenged the affidavit of Mr. Kuis on the ground that his testimony was not admissible expert testimony under Fed. R.Evid 702. Plaintiffs sought to strike Yost’s affidavit on the ground that her “pleas of ignorance” were insufficient to exonerate her from liability. As a factual matter, they also challenged her averment that William Coombs was not of sound mind prior to his death. Plaintiff also challenged Mr. Spence’s affidavit on the ground that it was “based solely on mistruths” and that Mr. Spence was a biased witness “in cahoots with [Yost].” (PL’s Mem. at p. 23, 24.)
The Court disposed of Plaintiffs’ motion to strike in a 15-page Memorandum Order dated June 29, 1998. [Doc. No. 183.] The Court granted Plaintiffs’ request to strike the affidavit of Mr. Kuis to the extent it purported to render an expert opinion on the alleged lack of environmental contamination emanating from the Coombs Property. The Court found two distinct problems with Mr. Kuis’s opinion: first, the record did not provide a sufficient foundation to establish Mr. Kuis’s expertise; second his testimony was not likely to assist the trier of fact insofar as it purported to interpret or summarize videotapes, agency reports, or other information which would speak for itself. In all other respects, the Court denied the Plaintiffs’ motion to strike. As to the affidavits of Ronald Coombs and Yost, the Court noted that any *339 factual assertions arguably contradicted by other record evidence were fodder for cross-examination, but did not constitute grounds for striking the affidavits. The Court found that Ronald Coombs’s affidavit set forth a sufficient foundational basis to establish his personal knowledge about William Coombs’s activities during the relevant time period; any challenges in this regard concerned the weight (as opposed to the admissibility) of Ronald’s testimony and could be properly explored on cross-examination. Notwithstanding Plaintiffs’ allegation that Ronald Coombs’s testimony about his father’s dementia was “without a doubt false,” the Court found no evidence of bad faith sufficient to justify striking the affidavit under Rule 56(e); indeed the Court did not perceive any clear credibility dispute about the fact that William Coombs had suffered some form of dementia prior to his death. As for Yost’s affidavit, the Court noted that Plaintiffs had not raised any valid challenge to the admissibility of her testimony; Plaintiffs’ argument that Yost’s assertions were insufficient to withstand summary judgment went to the merits of Plaintiffs’ summary judgment motion but provided no basis for striking the affidavit. Finally, the Court found that Plaintiffs had not stated a proper basis to strike Mr. Spence’s affidavit. Notwithstanding Plaintiffs’ contention that Spence’s affidavit was contradicted by his earlier report filed with the Borough Council, the Court found no evidence of bad faith in the record and, more fundamentally, no obvious contradiction in fact. To the extent any factual discrepancies did exist, the Court ruled that they could be sorted out through cross-examination. Plaintiffs’ assertion that Spence was a biased witness “in cahoots” with Yost also failed to state any valid basis for striking the affidavit; it was apparently premised on the mere fact that Spence had offered testimony favorable to Yost and unfavorable to Plaintiffs.
Having ruled on the parameters of Defendants’ Rule 56 evidence, the Court then turned to the merits of Plaintiffs’ motion for partial summary judgment. The Court issued a 34-page opinion on June 30, 1998 denying the Plaintiffs’ motion and discussing in detail both the evidence of record and the required elements of Plaintiffs’ various legal claims. As to each of the Plaintiffs’ causes of action, the Court found that the record evidence gave rise to competing inferences concerning material issues of fact. Among other things, the Court noted that there was a genuine factual dispute as to whether Coombs and/or Yost ever handled or disposed of solid or hazardous waste that was the cause in fact of contamination on the Grines’ property. Noting that there were four possible sources of contamination about which Plaintiffs seemed to be complaining, 17 we perceived a legitimate factual dispute as to whether each one was, in actuality, the source of the Grines’ environmental problems. For purposes of Plaintiffs’ RCRA claim, we noted that Plaintiffs had never come forward with any expert witness who could establish to a reasonable degree of scientific certainty that the contaminants on their property presented an “imminent and substantial endangerment to health or the environment,” as the statute requires. [See id. at p. 25 (citing 42 U.S.C.A. § 6972 (a)(1)(B)).] We denied summary judgment on the Clean Water Act claim because Plaintiffs had failed to make even a prima facie showing that Defendants had discharged pollutants into navigable waters of the United States. [Id. at p. 27.] We denied summary judgment on Plaintiffs’ CERCLA claim, in part, because Plaintiffs failed to establish as a matter of law that either Coombs or Yost had ever released “hazardous substances” from their properties. We noted that the government agents involved in the investigation had failed to detect “hazardous substances,” as defined under CERCLA, on either property. Moreover, Plaintiffs failed to show, as a matter of undisputed fact, that they had been required to incur response costs as a result of the compounds detected on their property. We noted that *340 the evidence of record “permits (if it does not command) the inference that the level of contamination found on Plaintiffs’ property has not presented any serious threat to their well-being.” [Id. at p. 30.] We observed that the various affidavits from Plaintiffs’ lay witnesses who purported to opine about the effects the contaminants were having on Plaintiffs’ health were not competent evidence under Fed.R.Evid. 701 or 702 for purposes of establishing a causal nexus between the Defendants’ alleged conduct and the Plaintiffs’ alleged harm. [See id. at p. 30, n. 17 .]
Several weeks after this Court denied their summary judgment motion, Plaintiffs filed a 47-page motion asking this Court to recuse itself from the case on the grounds that the •Court’s impartiality might reasonably be questioned. [Doc. No. 189.] The motion appeared to be driven primarily by Plaintiffs’ dissatisfaction with this Court’s adverse summary judgment ruling and its denial of Plaintiffs’ motion to strike the Defendants’ affidavits in opposition to the Rule 56 motion. In large measure, the motion to recuse was a rehash of Plaintiffs’ arguments that the Coombs and Yost affidavits contained inadmissible hearsay and perjured testimony. Accompanying the motion was a 36-page affidavit from Robert Grine asserting that Plaintiffs could not have a fair trial before this Court. Among other things, Mr. Grine maintained that the Court’s opinions were based upon extrajudicial sources including hearsay and perjury. In particular, Grine alleged that the Court’s reception of allegedly perjured testimony from Ronald Coombs and Randall Spence exhibited a “gross and pervasive bias” against Grine and a “deep-seated antipathy” toward his case. (Id. at p. 3-4, et seq.) Relying once again on his own personal interpretation of the lab data, Mr. Grine challenged this Court’s assessment of the scientific evidence, apparently overlooking the fact that the Court was legally bound — in assessing the Plaintiffs’ Rule 56 motion — to construe all evidence in the light most favorable to the non-moving Defendants. Grine also asserted that this Court was unaware of the federal permitting and manifest requirements relating to the shipment, storage, and disposal of hazardous wastes:
The drums [on the Coombs Property] were licensed and designed solely for the transport of hazardous materials.... Not one iota of probative evidence submitted by Coombs and Yost controverts this fact. If the labeling, marking and manifests which should have accompanied [the drums] were destroyed, such an action constituted a crime. This is the inference that should have been drawn from fact that is of record. It is not a reason to exonerate Yost and Coombs or arrive at the “finding” of fact that the drums were “empty” because all of the shipping papers describing their contents had been destroyed. The Court’s willingness to do so demonstrates a deep-seated antipathy and pervasive bias toward me.”
(Id. at pp. 15-16.)
The Court denied Plaintiffs’ motion in a memorandum order dated October 9, 1998. [Doc. No. 193.] In so ruling, the Court observed that Plaintiffs’ dissatisfaction with the Court’s previous rulings was an inappropriate basis for recusal. The Court rejected Plaintiffs’ contention that its rulings had been premised on “extrajudicial information” since the Court’s only information concerning this litigation had derived from the proceedings themselves. The Court also noted that Robert Grine’s affidavit was based not on factual allegations, but on his own legal conclusions and opinions criticizing this Court’s rulings. His conelusory statements, we determined, were insufficient to establish this Court’s impartiality. The Court acknowledged that there are rare instances where judicial rulings demonstrate so extreme a degree of favoritism or prejudice as to warrant recusal; however, viewing the facts objectively, we concluded that this was not one of those rare cases.
Undeterred, Plaintiffs sought to compel this Court to recuse from the case by filing a petition for writ of mandamus with the Third Circuit Court of Appeals on October 27,1998. On November 2, 1998 the Third Circuit entered a certified order denying Plaintiffs’ petition'for writ of mandamus in C.A. No. 98-3569. [See Doc. No 198.] Plaintiffs thereafter filed a petition for rehearing en banc, which was denied by the Court of Appeals on *341 January 12, 1999. See C.A. No. 98-3569. Plaintiffs sought further review by the United States Supreme Court, which denied cer-tiorari on May 17, 1999. [Doe. No. 200, 201.]
Plaintiffs’ Motion for an Order Adjudging the Government Defendants in Civil Contempt '
Despite this Court’s issuance of its December 31, 1996 Memorandum Opinion dismissing the Commonwealth Defendants from the case and its October 10, 1997 Memorandum Order disposing of the remaining aspects of the Plaintiffs’ claims against the EPA, Plaintiffs’ battles with the government raged on. On December 3, 1997, Paul Skirtish, Esq. wrote the Court advising that the EPA had complied with the Court’s October 10, 1997 Memorandum Order by producing to Plaintiffs’ counsel the remaining non-exempt FOIA documents. On January 14, 1998, Plaintiffs had conducted the deposition of Vincent Zenone and had the opportunity to question him about the activities conducted on the Grine and Coombs properties under his direction. Two weeks later, the EPA filed a motion requesting that this Court enter a final judgment under Fed.R.Civ.P. 54(b) formally dismissing the EPA from the case. [Doe. No. 140-41.]
In the meantime, however, Plaintiffs filed their “Motion for Order Adjudging Defendant [EPA] and Defendant [DEP] in Civil Contempt” (hereinafter referred to as Plaintiffs’ “Civil Contempt Motion”). [Doc. No. 133.] This motion evidently was the result of Ms. Haagensen’s review of the ROIs prepared by Special Agent Martin Wright, wherein Agent Wright referenced certain tests reportedly performed on the Coombs Property. Based on her review of these documents, Ms. Haagensen concluded that there was additional information concerning environmental testing performed on the Coombs and/or Grine properties which the EPA had deliberately withheld from Plaintiffs and about which the DEP had lied. Plaintiffs alleged that “an off-the-books series of tests were performed by the DEP, apparently for the benefit of the chief suspect [i.e., William Coombs], and never released to Plaintiffs or made a part of the public record by the DEP.” [Id. at p. 2] They charged that “the [EPA] is not proceeding in good faith, and in the face of Court orders is attempting to withhold important information crucial to the Plaintiffs’ cause.” [Id. at p. 3.] As for the DEP, Plaintiffs charged that “Attorney Wolford and his associates have represented to the Court and to the Plaintiffs that all documents relating to sample procurement and test analysis have been released to the Plaintiffs. The [DEP] has failed to abide by its own representations to the Court, and has failed to honor the Court’s directives.” [Id. at p. 4] Plaintiffs requested that this Court impose sanctions against the EPA and DEP, award Plaintiffs their attorney fees, and require the government Defendants to reimburse Plaintiffs for their independent lab testing in the amount of $2,500.00. [Id.}
On January 29, 1998 the Court held a status conference for the purpose of addressing Plaintiffs’ motion. [Doc. No. 153.] Turning first to Plaintiffs’ complaints with the DEP, Ms. Haagensen renewed her accusations that the DEP was in violation of court orders and that “an issue of serious perjury” had surfaced as a result of the EPA’s release of its CID documents. [Id. at pp. 4-5.] Again, it was Ms. Haagensen’s position that, because reference was made in Special Agent Wright’s ROI to certain environmental tests supposedly conducted by the DEP, DEP officials therefore must have either deceived Plaintiffs and the Court by withholding this data or (if the tests were not actually performed) “perjured themselves” by mis-representing to Agent Wright that such tests were conducted. Mr. Wolford, counsel for the DEP flatly denied Ms. Haagensen’s allegations that documents had been withheld from Plaintiffs. He pointed out that, although there was never any Court order directing the DEP to produce documents to Plaintiffs, he had offered at the preliminary injunction hearing to allow Plaintiffs to come to the Department and review all of DEP’s records, whether or not they were in the public file, and photocopy any records they found especially pertinent. Plaintiffs had accepted that offer and obtained access to the DEP’s file on June 20, 1996 in the presence of Mr. Wolford and other DEP representatives. It was Mr. Wolford’s position that all records were made available to Plaintiffs but that Plaintiffs’ counsel may have initially over *342 looked the documents they now sought or may not have recognized their potential importance at that time. [Id. at pp. 5-8.] As was often the case, the debate at times became contentious:
MR. WOLFORD: ... ,[W]hat I’m telling you today, Your Honor, is that all of our samples, including the ones that Mr. Wright was referring to in his report, were made available to them on June 20, 1996.
MS. HAAGENSEN: Your Honor, they haven’t produced them to the EPA or us.
MR. WOLFORD: We don’t produce things to EPA, maybe that’s part of her misunderstanding.
sjs # jj*
... one of the problems I think they’re running into is that they think the EPA’s records and our records are identical, and they are not.
MS. HAAGENSEN: That’s ridiculous.
THE COURT: Ms. Haagensen, let me request a favor of you, this really holds true for all counsel. I simply am not going to tolerate that level of discourse. It’s unnecessary and, furthermore, it’s unprofessional. So I’m going to request that, while everyone is free to disagree, that the disagreements be articulated in a reasonable, professional and courteous manner, do you understand?
MS. HAAGENSEN: Yes, Your Honor.
(Id. at pp. 8-9.)
Having heard from both sides, the Court resolved the issue as follows. First, it noted that the DEP had been dismissed from the case on the basis of Eleventh Amendment immunity; therefore, the Court lacked jurisdiction over the DEP. Secondly, the Court noted that Plaintiffs had other available means to pursue additional DEP documents, such as the ability to issue a subpoena duces tecum. 18 The Court also observed that the only dispute regarding production of documents over which the Court had proper jurisdiction concerned Plaintiffs’ FOIA claim against the EPA, which did not involve the DEP. The Court therefore refused to entertain Plaintiffs’ motion for contempt insofar as it was directed against the DEP. Ms. Haag-ensen, nevertheless, continued to insist that the DEP was a proper target of her contempt motion:
MS. HAAGENSEN: The appellate court just finished telling us there’s no final order in the case. When there’s a final order, we’ll appeal it. The DEP is in the case on the basis of misconduct on the site, it is not merely a FOIA inquiry.
THE COURT: Ma’am, with all due respect, did I not by opinion and order dismiss the DEP from the case in its entirety on Eleventh Amendment grounds?
MS. HAAGENSEN: That is apparently not a final order.
THE COURT: It is insofar as I’m concerned. It may not be appealable, but they are no longer in the case.
MS. HAAGENSEN: I think that is debatable.
THE COURT: I’m not going to debate with you, ma’am, let’s go on to another aspect.
(Id. at pp. 12-13.)
The Court next addressed Plaintiffs’ contempt motion as it pertained to the EPA. Ms. Haagensen alleged:
there are serious problems that relate to perjury regarding the EPA response. I’m sorry to say we have 600 extra pages to a report that was purportedly complete in 1995, and it’s now 1998. And our expert tells us that there is a serious problem of which she would characterize as a problem relating to forgery. That pesticides which are banned in this country are identified in that report. Hence, the data has been doctored to reflect a non-detect, when in fact those pesticides are present in high levels in the drums and in the soil on the Coombs’ site.
(Doc. No. 153, at pp. 13-14.) Mr. Skirtish summarized the EPA’s position as follows. Insofar as Plaintiffs were complaining about copies of FOIA documents that were illegible, the EPA had requested better copies from the DEP and had since forwarded those *343 documents to Ms. Haagensen. To the extent Plaintiffs alleged that the EPA violated FOIA by not producing certain test reports generated by the DEP as referenced in Agent Wright’s report, it was the EPA’s position that Agent Wright never physically received those reports from DEP officials and, consequently, the EPA never possessed those documents or produced them to Plaintiffs. Mr. Skirtish represented that:
... what we did, at my request, EPA took their entire files and I made them copy every piece of paper received from DEP, and they sent it to me, and I sent that to Ms. Haagensen to try and prove or comply with what she was looking for. I was told on every occasion by everybody involved in this case that prior copies had been made. And not withstanding that representation, we still sent what I consider another copy. So the motion for contempt is that the federal agency has not given up reports that they neither made, nor held copies to, nor analyzed. And my response is simply we cannot produce what we don’t have. And [can]not produce [that] which we did not create. We cannot produce, Judge, [that] which we did not review.
(Id. at p. 15.) Mr. Wolford also proffered an explanation for how a particular test might have come to be referenced within the Agent’s report, yet not contained within the EPA’s files:
[Dan Holler] was consulted by Mr. Wright during Mr. Wright’s investigation as to what Mr. Holler knew. And on one occasion they were talking about some samples that Mr. Wozniak, I believe, had taken of a drum or maybe the drums at the [Coombs] property. Mr. Wozniak did not put enough ice or something on it, he made an error. Mr. Holler tells me he did not put new ice on a sample when it arrived at the lab because the ice was not there present anywhere, for which we’re being alleged to have done something improper and criminal. But because he made that mistake of not having enough ice on it, the lab did not analyze it. So when Mr. Holler got a result back that the lab didn’t analyze it because there was no ice on it, and the result would have been erroneous, he picked up the telephone and called Mr. Wright to tell him we got the sample analysis sheet back and it says they didn’t do the tests. So Mr. Wright may well have a number referenced in his report but not have the sample results because he never got the results, because he heard on the telephone that the results were not run. And we’re going to pay through this criminal process at our end for Mr. Wozniak not putting enough ice in the cooler, now we’re being alleged to have done something criminal. That’s our problem, ... From the EPA’s standpoint, from the court’s standpoint, there is an explanation why what Mr. Skirtish is telling you may be true.
... But [Plaintiffs’ counsel] did have an opportunity to look at all that stuff on June 20th. That was all part of what they had, the sample result that Mr. Holler looked at when he called Mr. Wright to tell him that the lab didn’t run the sample, that sheet of paper was in those records that the plaintiffs already looked at. If they didn’t want to copy it, well, that’s their problem. But it was there for them to look at and a copy would have been provided had they asked for that.
MS. HAAGENSEN: Your Honor, that’s patently false.
MR. WILLIAMS: ... My recollection that day that we were up, we had such a voluminous amount of records that they couldn’t be gone through in one day. Therefore, we ceased activity that day and you were going to send them to us by copies and they never arrived.
MR. WOLFORD: I

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8735717. Public record. Not legal advice.