Once the USA has made out a prima facie case of unreasonable activity, the burden of proof shifts to the defendant to rebut the government's case by . . . proffering . . . affirmative defenses." United States v. Barkman, 784 F. Supp. 1181. 1187 n. 3 (E.D. Pa. 1992) (citing United States v. Crown Roll Leaf Inc., 19 Envtl. L. Rep. 20262, 20264-65 (D.N.J. Oct. 20, 1988) ("Crown Roll Leaf I") (emphasis in original). This Court holds that the United States has satisfied its burden of demonstrating prima facie unreasonableness by illustrating Gurley' s evasive and willful failure to avoid responding to the information requests from February 6, 1992 until September 15, 1992; Gurley's refusal to respond from September 15, 1992 until April 22, 1993; Gurley's incomplete response and failure to respond to financial or PRP information from April 22, 1993 until July 28, 1994; and Gurley's incomplete disclosure of financial or PRP information from July 28, 1994 until February 2, 1999.

Second, the Defendants must rebut the United States' case with affirmative defenses. See Gurley, 235 F.Supp.2d at 803; United States v. Barkman, 784 F.Supp. 1181, 1187-88 (E.D. Pa. 1992); United States v. Martin. No. 99 C 1130, 2000 WL 1029188 (N.D. 111. July 26, 2000). Once both sides have been heard, the court must decide whether the Defendants' excuses mitigate their noncompliance or otherwise render it reasonable.

The government need only show that the defendant acted unreasonably by a preponderance of the evidence; the defendant may then rebut the government's case through an affirmative defense. United States v. Barkman, 784 F. Supp. 1181, 1186 n. 3 (E.D. Pa. 1992); United States v. Gurley, 235 F. Supp. 2d 797, 803 (W.D. Tenn.), aff'd, 384 F.3d 316 (6th Cir. 2004). A defendant's intentions will be applicable when a determination is made as to the amount of the penalty to be imposed. Ponderosa, 178 F. Supp. 2d at 163.

Accordingly, the Government need not demonstrate that the defendant intended to act unreasonably, only that he in fact did act unreasonably. See United States v. Barkman, 784 F. Supp. 1181, 11 86 n. 3 (E.D. Pa. 1992). Once the Government establishes its case by a fair preponderance of the evidence, the defendant may rebut the government's case by proffering an affirmative defense.

The district court properly addressed each of the factors that district courts routinely consider before arriving at its penalty. See United States v. Taylor, 8 F.3d 1074, 1078 (6th Cir. 1993) ("[C]ourts have identified the following factors, among others, as bearing on the amount of a penalty: (1) the good or bad faith of the defendant, (2) the injury to the public, (3) the defendant's ability to pay, (4) the desire to eliminate the benefits derived by a violation, and (5) the necessity of vindicating the authority of the enforcing party.") (quotation marks omitted); United States v. Barkman, 784 F.Supp. 1181, 1189 (E.D.Pa. 1992) (holding that the same five factors should be considered in assessing civil penalties against an operator of a landfill for failure to comply with information requests issued to him pursuant to CERCLA). Most of the factors' application to Gurley are self-evident.

Under 42 U.S.C. § 9604(e)(5)(B)(ii), courts may assign civil liability if a person “unreasonably fails to comply” with orders to grant access to property, provide information, or take a response action. Courts have previously found that “Congress intended to impose a strict liability standard for violations of CERCLA,” and that the government need not prove that a defendant “intended to act unreasonably, only that he did.” United States v. Crown Roll Leaf, Inc., 1988 U.S. Dist. LEXIS 15785 (D.N.J. 1988); United States v. Barkman, 784 F.Supp. 1181, 1187 (E.D. Pa. 1992). Accordingly, a defendant's state of mind is irrelevant to a reasonableness determination.

See Timmons, 2006 WL 314457, at *17 (“[C]ourts [across the country] have proposed penalties of $2,000, $1,000, $500, $75, and $55 per day depending on the situation”) (collecting cases); see also, e.g., Gurley, 235 F.Supp.2d at 808-09 (applying a three-tiered penalty structure of $2,000/day, $1,000/day, and $500/day for different periods of time, depending on egregiousness, for a total of $1,908,000 in information case against direct polluter); United States v. Martin, No. 99-CV-1130, 2000 WL 1029188 at *10 (N.D. Ill. July 26, 2000) ($75/day for total of $45,525 in information case against direct polluter); United States v. Barkman, 784 F.Supp. 1181, 1190 (E.D. Pa. 1992) ($55/day for total of $38,500 in information case against direct polluter). Even in this circuit, more recently assessed per-day penalty amounts are not consistent with those imposed in Genzale and JG-24.

The parties also cite United States v. Barkman in support of their respective positions. 784 F. Supp. 1181 (E.D.Pa. 1992). In Barkman, the court found that the defendant's 700-plus-day delay in fully complying with an EPA information request was per se unreasonable.

662 F.2d at 967-68. Courts have applied these five factors in determining civil penalties under CERCLA for defendant's failure to respond to EPA information requests, see, e.g., U.S. v. Barkman, 784 F. Supp. 1181, 1189 (E.D.Pa. 1992); United States v. Crown Roll Leaf, Inc., 29 E.R.C. 2025, 2032, 1989 WL 201617 (D.N.J. 1989) and in other environmental enforcement cases. See, e.g., United States v. Vineland Chemical Co., 31 E.R.C. 1720, 1990 WL 157509 (D.N.J. 1990); U.S. EPA v. Environmental Waste Control Inc., 710 F. Supp. 1172, 1242 (N.D.Ind. 1989), aff'd, 917 F.2d 327 (7th Cir. 1990); United States v. T S Brass Bronze Works, Inc., 681 F. Supp. 314, 322 (D.S.C. 1988).