United States v. Hardage

FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR REMEDY SELECTION PHASE

PHILLIPS, District Judge.

I. INTRODUCTION

This Order arises from the trial of a bifurcated portion of a CERCLA

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case. The trial involved the selection of a remedy for the cleanup of toxic wastes at the Hard-age Superfund Site (“Hardage Site”), a closed industrial waste disposal site located near the town of Criner, Oklahoma. The parties have presented the Court with competing remedies.

The plaintiff United States of America advances an “excavation” remedy that seeks to remove a substantial portion of the wastes and hazardous substances from the site. A second major component of the government’s remedy involves “soil vapor extraction,” a technology developed to remove highly toxic and mobile compounds from the subsurface.

The defendants,

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on the other hand, advance a “containment” remedy, which is designed to pump large quantities of waste from the site, while at the same time leaving substantial volumes of hazardous substances in the subsurface. The defense theory relies on a combination of natural bedrock features and man-made hydraulic barriers to create a “bathtub” effect, which, according to the Hardage Steering Committee (“HSC”) defendants, will contain the wastes and hazardous substances that are not pumped out.

The United States estimates that its remedy will cost approximately $70 million. However, the defendants contend that the costs of the government’s proposed remedy, including major repair contingencies, operation, and maintenance, will be $150 million. On the other hand, the defendants estimate their remedy will cost approximately $54 million. The government generally agrees with this estimate. The defendants further argue that the site could have been cleaned up under a plan proposed in 1982 by the Oklahoma State Department of Health (“OSDH”) at a cost, in 1989 dollars, of $17.75 million.

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The government characterizes the defense proposal as “peace in our time.”

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The government argues that all containment remedies fail with the only question being when. The defendants, on the other hand, portray the government’s remedy as unscientific, costly, and a product of “slavish adherence” to unsound litigation strategy. The defendants also allege that the government’s proposed remedy was a “moving target” that changed substantially as the remedy trial drew closer.

As discussed more fully below, the Court divided the entire Hardage Site litigation into four major phases: (1) a remedy selection phase; (2) a liability phase; (3) a third-party claims phase; and (4) a cost allocation phase. Because of the critical nature of the remedy disputes in the case, the Court and the parties elected to proceed first with the Remedy Phase. Although the parties’ estimates of the time necessary for trial of the Remedy Phase ranged from 52 days to several months,

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the Court allocated only 20 days.

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However, the trial was concluded in just 11 days, in part because of the streamlined procedures the Court adopted,

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and, in part because of the extremely high caliber of legal representation on both sides of the lawsuit.

The streamlined nonjury trial procedure involved the submission of witness affidavits in lieu of direct examination on most points. The parties were given an opportunity to present both supplemental direct examination and full cross-examination of the witnesses during trial. As ordered by the Court, the parties submitted comprehensive stipulations on undisputed matters.

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The Court has reviewed and considered the testimony of all of the 45 trial witnesses.

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In addition, the Court has examined more than 8,000 pages of affidavits and deposition transcripts, 250 pages of stipulations, and more than 470 exhibits introduced by the parties at trial, totaling more than 150,000 pages of record.

As a result of the trial, the Court is convinced that the United States has not carried its burden of proof and has not convinced the Court of the propriety of its proposed remedy. Moreover, the Court is convinced that the HSC defendants’ proposed containment remedy is markedly superior to the government’s proposed remedy. The findings of fact and conclusions of law set forth below resolve the remedy issue in favor of the HSC defendants. In addition, this Order sets forth the Court’s rulings on the other claims and matters that were at issue in the remedy trial, including: the Consent Decree,

9

the United States’ supplemental response cost claim,

10

the HSC defendants’ response cost claim,

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and other equitable defenses asserted against the United States.

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II. PARTIES AND APPEARANCES

The plaintiff was represented by the following counsel for the Remedy Phase:

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John R. Barker, trial attorney Department of Justice

Anna Wolgast, trial attorney Department of Justice

Kurt Weissmuller Department of Justice

Steven Novick Department of Justice

Gary S. Guzy Department of Justice

Bruce Buckheit Department of Justice

Kalyn C. Free Department of Justice

William Merrill Department of Justice

Jon Lipshultz Department of Justice

Dianne M. Shawley Department of Justice

Jerry Schwartz Department of Justice

Charles de Saillan Environmental Protection Agency

Steven Mullins United States Attorney’s Office, Western District of Oklahoma

Thomas Curtis United States Air Force

Several groups of defendants, as well as individual defendants, participated in the Remedy Phase. The HSC defendants

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made an appearance to oppose the imposition of the United States’ proposed remedy, to oppose approval of the Consent Decree, and to offer their own proposed containment remedy for implementation at the Hardage Site. Earlier, the HSC defendants had stipulated to liability.

The HSC defendants include: Advance Chemical Co.; Allied-Signal, Inc.; AT & T Technologies, Inc.; Ashland Oil, Inc.; Atlantic Richfield Co.; Borg-Warner Corp.; BULL HN Information Systems, Inc. (formerly Honeywell Bull, Inc.); Exxon Corp.; Bridgestone/Firestone, Inc.; GenCorp, Inc.; Magnetic Peripherals, Inc.; Mare-mont Corp.; McDonnell Douglas Corp.; Mobil Chemical Co.; Nalco Chemical Co.; Oklahoma Gas & Electric Co.; Oklahoma Publishing Co.; Rockwell International Corp.; Texaco Refining and Marketing, Inc.; Texas Instruments, Incorporated; Uniroyal, Inc.; UOP, Inc.; Westinghouse Electric Corp.; Weyerhaeuser Co.; and Powell Sanitation Service, Inc.

Common counsel provided primary representation for the HSC in the remedy trial. Kenneth N. McKinney, Robert D. Tomlin-son, Mark Coldiron, and Dawn Northup served in this capacity. Certain other attorneys provided separate representation for individual HSC generator defendants and participated in various aspects of the trial. These corporations and their attorneys included:

Jerome T. Wolf AT & T Technologies

Carl Helmstetter AT & T Technologies

Allan Gates Oklahoma Publishing Co.

Jeffrey N. Martin Oklahoma Gas & Electric Co.

James C. Morriss Bridgestone/Firestone, Inc.

Stephen Fink Bridgestone/Firestone Tire & Rubber Company

Walter J. Hryszko Exxon Corporation

Michael D. Graves Honeywell, Magnetic Peripherals, and McDonnell Douglas Corp.

Howard Seitzman Borg Warner Corp., Texas Instruments, Incorporated

Charles W. Shipley Atlantic Richfield Co., Ashland Chemical Co., and Maremount Co.

Amanda G. Birrell Nalco Chemical Co.

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Other defendants and third-party defendants appeared through the following counsel:

Steve McKinney Oklahoma National Stock Yards Co.

Gavin Mclnnis Ralph L. Lowe

John D. White JOC Oil Exploration Co., Inc.

Ross Plourde Double-Eagle Refining Co.

As reflected by the trial record, participation at trial by counsel for the other defendants and the third-party defendants was minimal. Virtually all of the examination was conducted by common counsel for the HSC defendants.

Another group of defendants who participated in the Remedy Phase consisted of the consent decree defendants. These are the defendants who, on the eve of trial, entered into a Consent Decree with the United States. Under the provisions of the Consent Decree filed on November 21, 1989, the consent decree defendants agreed to pay for, and to perform, certain elements of the United States’ desired remedy for the Hardage Site.

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The consent decree defendants who made appearances to support the government’s proposed remedy and to advocate the approval of the Consent Decree, and their counsel, included:

Andy Coats Cato Oil and Grease Co., Kerr-McGee Refining Corp.

Leanne Burnett Kerr-McGee

Jeanie McLemore L & S Bearing Co.

Joseph F. Guida L & S Bearing Co., and Rotex Corp.

Steve LeSatz United States Pollution Control, Inc.

Irwin Steinhorn United States Pollution Control, Inc.

All counsel are to be complimented on their professionalism throughout the trial as well as during the other aspects of this case. With minor exceptions, each attorney’s in-court appearances and written submissions exhibited an exceptionally high level of preparation, a good grasp of the legal issues, submission of the most current legal and statutory authority, and respect for of the Court and fellow attorneys. Just as the Court inherited this litigation from another judge of this district, a number of the attorneys who participated in the trial inherited the case from others. As a result of the professionalism and spirit of cooperation, the case was tried quickly and thoroughly.

III. ABBREVIATIONS

The Court and the parties agreed upon certain abbreviations and citation forms for purposes of the findings. The abbreviations used by the Court:

Aff. Affidavit

App. Appendix

ARAR Applicable or Relevant and Appropriate

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CERCLA Comprehensive Environmental Response, Compensation, and Liability Act

DE Defense Exhibit

Decl. Declaration

DNAPL Dense Non-Aqueous Phase Liquids

DOJ EPA Department of Justice United States Environmental Protection Agency

ft. Feet

fig. Figure

gals. Gallons

GE Government Exhibit

HSC Hardage Steering Committee

LNAPL Light Non-Aqueous Phase Liquids

NAPL Non-Aqueous Phase Liquids

NCC North Criner Creek

NCP National Contingency Plan

OSDH Oklahoma State Department of Health

OSHA Occupational Safety and Health Administration

% Percent

PCB Polychlorinated biphenyl

¶ Paragraph

ppb Parts per billion

ppm Parts per million

RCRA Resource Conservation and Recovery Act

ROD Record of Decision

SARA Superfund Amendments and Reauthorization Act of 1986

US United States

VOCs Volatile Organic Compounds

yrs. Years

Following is an explanation of the citation forms used in this Order.

Affidavits

Aff. at_

Witness’ Last Name Page

Declarations

Decl. at ____

Witness’ Last Name Page

Rebuttal Affidavits

R. Aff. at_

Witness’ Last Name Page

Rebuttal Declarations

R. Decl. at_

Witness’ Last Name Page

Supplemental Rebuttal Affidavits

S. R. Aff. at_

Witness’ Last Name Page

Supplemental Affidavits

S. Aff. at_

Witness’ Last Name Page

Supplemental Declarations

S. Decl. at_

Witness’ Last Name Page

Stipulated Cross-Examinations

Stip. Cross at_

Witness’ Last Name Page

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Trial Transcripts

_ at_

Volume Page

Orders, Briefs, Motions, and Memoranda

- at-(-) (-)

Designation on document Page or subdivision Date. Filing number

See

Uniform Abbreviations filed December 26, 1989. These abbreviations will be utilized by the Court in this Order.

IV. STIPULATIONS

A number of stipulations among the parties expedited the trial. Because some of the stipulations assist in a fuller understanding of the case, they are set out in their entirety. However, because of their length, the complete stipulations are attached as exhibits. The Court adopts all of the stipulations for purposes of this Order.

The stipulations

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are contained in the following pleadings filed in this case:

Filing Date Pleading ill (T> Hi

11721/89 Statement of Uncontested Facts.

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to to I-4 to

11/22/89 Supplemental Joint Stipulation

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CO to CO co

11/17/89 Stipulation Regarding Analytical Data: Samples On Which The Parties Agree

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to to O t — *

2190 11/17/89 Stipulation Regarding Analytical Data: Samples On Which the Parties Disagree.

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V. ADDITIONAL PROCEDURAL HISTORY AND BACKGROUND

A.

Site Location and Operating History

Defendant Royal N. Hardage owned and operated a waste disposal site located in rural McClain County, Oklahoma, approximately 15 miles southwest of Norman and one-half of a mile west of Criner. The Oklahoma State Department of Health (“OSDH”) permitted the Hardage/Criner site as an Industrial Hazardous Waste Land Disposal Facility in September 1972. The site began operating in September 1972 and closed in November 1980.

Over the eight-year period of operation, in excess of 20 million gallons of waste were transported to the Hardage Site for storage and/or disposal. Supplemental Joint Statement of Uncontested Facts para. 48 (Nov. 21, 1989) (filing No. 2212). Originally, liquids and sludges from drums and tank trucks were discharged directly into unlined pits. As disposal areas filled, wastes were transferred to other areas. Later, drums were no longer emptied, but piled into what became the drum or barrel mound. Ultimately, the site consisted of chemical impoundments including the large unlined, unsealed “main pit,” a series of small temporary pits, and two large mounds (“barrel” and “sludge” mounds).

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The types of waste generally accepted at the site included: oil recycling wastes, acids, caustics, lead, cyanide, arsenic, pesticides, PCBs, and other substances. The Record of Decision (“ROD”) describes in detail other types of wastes accepted at the site, along with the hazardous contaminants present at the site.

Id.

at 3.2.

B.

Enforcement History

In 1978, the State of Oklahoma filed complaints against the facility for suspected lead poisoning of the air around the site. In September 1979, the OSDH began proceedings to revoke the facility permit as a result of Mr. Hardage’s use of unpermitted pits, his failure to seal permeable lenses in the pits, his improper closure of pits, his failure to retain runoff, and his improper storage of wastes at the site.

During 1979, preliminary Environmental Protection Agency (“EPA”) investigations and inspections of the site indicated poor waste management practices posing threats to public health and welfare and the environment. In September 1980, the United States Department of Justice (“DOJ”) filed suit in

United States v.

Hardage

21

on behalf of the EPA against Mr. Hardage, the site owner. The complaint alleged violations of section 7003 of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6973 , and sought injunctive relief for proper cleanup and closure of the site. Following the passage of CERCLA, the United States amended its complaint in June 1982 to add claims for injunctive relief under section 106 of CERCLA, 42 U.S.C. § 9606 , and for cost recovery under section 107, 42 U.S.C. § 9607 .

The Court bifurcated the trial in

Hard-age I

to consider Mr. Hardage’s liability first, and then to determine the proper remedy and costs incurred or to be incurred in any cleanup. On December 13, 1982, United States District Judge Lee R. West entered his findings of fact and conclusions of law in

Hardage I.

The Court found contamination of soil and groundwater as well as releases of contaminants into the air. The Court concluded that the Hardage Site was dangerous and found Mr. Hardage individually liable under section 7003 of RCRA and section 106 of CERCLA. However, because the remedial phase of the trial remained, the Court entered no judgment on the injunctive claims.

United States v. Hardage,

18 Env’t Rep. Cas. (BNA) 1687, 1696 (W.D.Okla.1982). On August 19, 1983, the Court entered a partial judgment under section 107 of CERCLA against Mr. Hardage for $211,-795, which represented the United States’ response costs incurred through December 1982. The United States thereafter sought to identify Mr. Hardage’s assets and to obtain payment under the partial judgment. However, Mr. Hardage filed for bankruptcy on January 28, 1985, in the Bankruptcy Court for the Western District of Oklahoma, and received a discharge in bankruptcy on June 24, 1985.

After the Court’s liability ruling in

Hard-age

/, the EPA continued to study the Hardage Site through investigations and administrative review. The EPA prepared a feasibility study to evaluate alternative remedial actions to clean up the Hardage Site from technical, environmental, and cost-effective perspectives. The EPA conducted studies of the Hardage Site in 1982, 1983, and 1984. The studies concluded that substantial work would be necessary to clean up the Hardage Site. In addition, the United States sought to identify other parties responsible for the contamination, in light of Mr. Hardage’s financial difficulties.

As the EPA compiled available records from site operations, numerous Potentially Responsible Parties (“PRPs”) were identified. In December 1984 the EPA notified numerous companies, pursuant to section 104 of CERCLA, 42 U.S.C. § 9604 , of their status ás PRPs pursuant to section 107 of CERCLA, 42 U.S.C. § 9607 .

Following Mr. Hardage’s discharge in bankruptcy, the United States requested, and the Court on July 18, 1985, issued, an order administratively terminating

Hard-age I.

The administrative closing was ordered without prejudice to the rights of the parties to reopen the proceedings by April

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1, 1986, “for good cause shown, for entry of any stipulation or order, or for any other purpose required to obtain a final determination of the litigation.” On March 27, 1986, the United States moved to reopen the proceedings and to amend its complaint in

Hardage I.

The United States sought to add as party defendants various generators and transporters of the hazardous substances located at the Hardage Site. The Court denied the United States’ motion and dismissed the case on April 1, 1986. The dismissal was without prejudice to the United States’ rights to collect the earlier judgment against Mr. Hardage, or to join Mr. Hardage in any subsequent action, other than a money judgment, deemed “necessary to allow EPA or its designees to remediate or respond to conditions at the Site or take actions necessary to protect the public health, welfare or the environment.”

On June 25, 1986, the United States filed the instant action,

United States v. Hard-age,

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against 32 generators and three transporters, each of whom allegedly shipped between 100,000 and 1.7 million gallons of hazardous wastes to the site. The United States also sued Mr. Hardage for the limited purposes specified in the Court’s earlier dismissal. As in

Hardage I,

the complaint in

Hardage II

sought injunc-tive relief under section 7003 of RCRA and section 106(a) of CERCLA to require the defendants to clean up the site, and to recover costs incurred by the United States under section 107 of CERCLA.

Most of the original defendants in

Hard-age II

organized themselves as the HSC defendants. The HSC’s answer in

Hard-age II

asserted numerous affirmative defenses and counterclaims against the United States. The HSC defendants in turn brought a third-party complaint against approximately 180 additional third parties for contribution, and to obtain reimbursement of the HSC’s costs expended in taking response and remedial actions at the Hard-age Site.

C.

Bifurcation of Case

In a Case Management Order issued on March 26, 1987, the Court bifurcated the case into two phases, with the Liability Phase to be tried prior to the Remedy Phase. Case Management Order at 7. The allocation of the ultimate cost of any court-ordered cleanup would follow later. Most of the defendants, however, stipulated to liability under sections 106 and 107 of CERCLA. As a result, the Court, in entering judgment as to the HSC defendants’ liability on November 10, 1988, amended its Case Management Order to provide for the Remedy Phase to be tried as Phase I. Judgment and Order (Nov. 10, 1988) (filing No. 1553). The Court’s judgment also delineated the scope of the Phase I trial. The trial was to include “issues of appropriate response-remedial measures” for the Hardage Site, “the entitlement to and amount of response costs, if any, and the extent, if any, of [the United States’] liability” pursuant to the defendants’ counterclaims and affirmative defenses.

Id.

at 3 . The Court indicated that Phase II of the trial would determine whether defendants, other than the HSC, were liable under sections 106 and 107 of CERCLA, 42 U.S.C. §§ 9606 and 9607.

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The judgment also indicated that any trial of cross-claims or third-party claims for contribution would be separate from the United States’ action and would not commence until Phases I and II were completed.

D.

Alternate CERCLA Cleanup Provisions

The CERCLA provides the United States with three alternate methods of providing for the cleanup of hazardous waste sites. Section 104(a) permits the government to use Superfund

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monies to clean up sites, and then to seek recovery of the response costs from responsible parties under sec

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tion 107(a). Section 106 provides two other methods for site cleanups when the EPA determines that the site conditions “may [pose] an imminent and substantial endangerment to the public health or welfare or the environment.” 42 U.S.C. § 9606 (a) (1982). Section 106(a) permits the EPA either (1) to require the Attorney General “to secure such relief as-may be necessary to abate such danger or threat” by filing a civil action in federal district court seeking an injunction to compel responsible parties to perform such relief, or (2) to issue administrative orders “as may be necessary to protect public health and welfare and the environment.”

Id.

The EPA studied and investigated the Hardage Site and incurred response costs in the process. However, the EPA did not clean up the site itself under section 104(a) of CERCLA. Instead, the United States pursued injunctive relief, in

Hardage I

against Mr. Hardage and in this case against the generators and transporters of hazardous substances, to require the defendants to clean up the Hardage Site. 42 U.S.C. § 9606 (1982 & Supp. V 1987). This distinction is significant, because the scope of the remedy trial conducted in December 1989 was determined directly by the EPA’s pursuit of injunctive relief and by earlier rulings of this Court concerning the scope of review of the EPA’s selection of response actions.

E.

Scope of Review of the EPA’s Remedy Selection

Throughout this proceeding, the United States has advocated that the scope of judicial review of the EPA’s remedy selection for the Hardage Site should be restricted to review of the administrative record on an arbitrary and capricious standard. However, on three separate occasions, the Court ruled that the scope of review would be

de novo

review of any remedy suggested by the EPA.

The record review issue first arose in the context of the United States’ November 17, 1986, motion for protective order, which sought to limit the scope of deposition discovery by defendants of two contractors employed by the EPA to aid in developing a remedy. Judge West, on December 11, 1986, denied the motion for protective order.

United States v. Hardage,

25 Env’t Rep.Cas. (BNA) 1343, 1986 WL 647 (W.D. Okla.1986). The Court emphasized that the administrative record had not yet been filed.

Id.

at 1344. The Court found that the SARA record review provisions were not applicable to the United States’ claim for injunctive relief under section 7003 of RCRA.

Id.

at 1344-45. In addition, the Court held that restrictions on judicial review did not apply to injunctive actions generally.

Id.

at 1345. The Court also concluded that the provisions of the Administrative Procedure Act were inapplicable.

Id.

Judge West ruled that section 106 injunctive claims “must be resolved in traditional trials by federal district courts after full discovery.”

Id.

The Court further concluded that the “defendants are entitled to

de novo

review of any suggested remedy by EPA at the Hardage site.”

Id.

On April 9, 1987, the Court denied the United States’ motion for reconsideration.

United States v. Hardage,

663 F.Supp. 1280 , 26 Env’t Rep.Cas. (BNA) 1053 (W.D. Okla.1987). The Court ruled, in addition to its prior-stated rationale, that SARA record review provisions could not be applied retroactively to actions filed before the passage of SARA, and that a restricted judicial review of the EPA’s remedial decision raised due process concerns.

Id.

663 F.Supp. 1280 , 26 Env’t Rep.Cas. (BNA) at 1055, 1059-61. The Court also distinguished injunctive actions brought in federal district court pursuant to section 106 of CERCLA from those brought administratively under section 106 for injunctive relief, and from actions for cost recovery under section 107 in instances in which the EPA funds site cleanups.

Id.

663 F.Supp. 1280 , 26 Env’t Rep.Cas. (BNA) at 1056.

Once it was compiled, the United States certified to this Court on March 15, 1988, the administrative record supporting the EPA’s November 14, 1986, ROD. The United States then moved for the Court to restrict judicial review of the EPA’s remedial decision to the administrative record. On March 15, 1988, the United States also moved to dismiss its count based on section 7003 of RCRA.

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On July 14, 1988, this Court granted dismissal of the RCRA count. However, in a minute order dated September 9, 1988, the Court denied the United States’ motion for record review, citing the Court’s prior decisions on the motion for a protective order, dated December 11, 1986, and April 9, 1987. The Court also found as a matter of law that section 106 claims “must be resolved in traditional trials by federal district courts after full discovery, and that retroactive application of Section 113(j) of SARA is improper.” Minute Order (Sept. 9, 1988) (filing No. 1435). On September 9, 1988, the Court issued an accompanying memorandum decision stating that reversal of the Court’s earlier rulings concerning the scope of review was not warranted by the United States’ withdrawal of the claim based on section 7003 of RCRA or by the United States’ filing of the administrative record in March of 1988. Order on Motion to Restrict Review (Sept. 9, 1988) (filing No. 1434).

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Accordingly, the Remedy Phase proceeded to trial with this Court conducting a

de novo

review of the United States’ proposed remedy for the Hardage Site. However, under any standard of review, the Court’s decision on the remedy would have been the same.

F.

Special Master

Early in this litigation, the Court recognized that the complexity of the issues, the number of parties, and the need to expedite matters to ensure protection of the public welfare might require the appointment of a special master under the provisions of Rule 53 of the Federal Rules of Civil Procedure. Toward that end, at a status conference on September 3, 1986, the Court directed the parties to submit a list of the names of 10 persons they believed would be qualified to serve as a special master. On October 1, 1986, the parties filed their lists of suggested candidates for special master. In addition, the United States supplemented its submission with the policy of the Attorney General of the United States on the use of special masters. The United States opposed the use of a special master as a technical advisor to the Court, but agreed a master might help resolve discovery disputes and could assist with the settlement process.

After interviewing candidates for the position of special master, on February 25, 1987, the Court issued an order citing the following reasons for appointing a special master:

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(1) The case would require urgent resolution due to a threat to the public welfare.

(2) Analysis of technical and scientific data would be required to determine complex issues of liability and apportionment.

(3) Issues would be complicated by the number of parties and the commingling of the waste.

(4) The vast amount of evidence necessary to litigate this case would result in extensive discovery which would require almost constant supervision.

In the order, the Court appointed Alexander H. Danzberger as a special master for the

Hardage

case. The order delineated the master’s duties and authority. Order of Reference to Special Master at 12-13. In addition, the Court established a Master’s Reimbursement Fund of $70,000 to meet the expenses of the master during his term of service to the Court.

During his three years as special master, Mr. Danzberger:

(1) Conducted formal hearings on the record at the Court’s direction concerning the proposed Case Management Order and assisted in a hearing on a temporary restraining order on drilling at the site.

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(2) Served as hearing officer on pretrial matters.

(3) Provided negotiation assistance to facilitate agreement on the Consent Decree for HSC’s performance of the Second Operable Unit Remedial Investigation/Feasibility Study — Management of Migration.

(4) Recommended settlement strategies in magistrate’s hearings.

(5) Facilitated discussion between the parties on site characterization issues, on interpretation of scientific data, and on the extensiveness of remedy requirements.

(6) Provided periodic reports to the Court regarding litigation progress.

The Court publicly expresses its appreciation of Mr. Danzberger’s service as special master. His efforts have facilitated open discussion between the parties, have aided in narrowing technical issues, and have streamlined the efficiency of this litigation. Because of the scope of review of the Remedy Phase, Mr. Danzberger played no role in that trial or in the preparation of this Order.

VI. WITNESSES CALLED BY THE PARTIES

The Court began receiving testimony in this case on November 27, 1989. The parties called the following witnesses:

A. Witnesses Called by the Government and Consent Decree Parties

Witness Name Employer Business, Profession or Occupation

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Date of Testimony

1. Kirk W. Brown Texas A & M Univer- Professor of soil and crop sciences; sity soil physicist November 27, December l, 1989

2. Marc A. Jewett CH2M Hill, Inc. Senior hydrogeologist and project manager November 27, 1989

3. Joseph P. Danko CH2M Hill, Inc. Process engineer/project manager; chemical engineer in the industrial processes and hazardous waste division November 27, 1989

4. Harold W. Bentley University of Ari- Associate adjunct professor; hydro-zona geochemist November 27, 1989

5. Annette M. Shipp Clement Associates Vice president; toxicologist November 27-28, 1989

6. Murdock John Cullinane, Jr. United States Army Corps of Engineers Research civil engineer, Waterways Experiment Station, Vicksburg, Mississippi November 28, 1989

U.S. Pollution Control, Inc. 7. Mary Ann Heaney Manager of health and safety; industrial hygienist November 28, 1989

8. Steven A. Beck U.S. Pollution trol, Inc. Con-Regional project manager for remedial services November 28, 1989

9. llene Whitehead Self-employed Co-owner of a family dairy farm located near the Hardage dump site November 29, 1989

10. Samuel Royce Smith Eastern Avenue Baptist Church, Moore, Oklahoma Associate pastor and Christian academy headmaster whose mother owns a farm near the Hardage Site November 29, 1989

11. Robert W. Davis CH2M Hill, Inc. Manager, Industrial Process Group; civil engineer November 29, 1989

12. Robert A. Griffin Illinois State Geological Survey; R.A. Griffin & Associates Principal Geochemist and Branch Chief of the Environmental Geology and Geochemistry Branch of the Illinois State Geological Survey; principal November 29, 1989

13. Gary R. Walter Hydro Geo Chem Registered geologist; hydrologist November 29, 1989

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14. John B. Robertson HydroGeoLogic, Inc. Principal hydrogeologist and executive vice president November 29-30, 1989

15. Thomas A, Prick-ett Thomas A. Prickett President; water resources engineer- November 30, 1989 & Associates, Incor- ing consultant porated

16. Peter R. Jaffé Princeton University Assistant professor, Department of November 30, 1989 Civil Engineering and Operations Research

17. John M. Bruck Bruck, Hartman & Esposito, Inc. President and chairman; registered November 30, 1989 professional civil engineer; consultant in environmental management science and engineering

18. Allyn M. Davis United States Environmental Protection Agency Director, Hazardous Waste Manage- November 30, 1989 ment Division

19. Eugene Meyer Meyer Environmental Consultants, Inc. President; process chemist December 1, 1989

20. William Cooke United States Environmental Protection Agency Chief of the cost accounting and reporting section, Office of the Controller; certified public accountant December 1, 1989

21. Patrick A. McGeehin Rubino & McGeehin, Chartered Cofounder and partner; certified December 1, 1989 public accountant

22. Joseph Menchaca Ernst & Young Partner, management consulting di- December 4, 1989 vision; certified public accountant

B. Witnesses Called by the Defendants

Witness Name Employer Business, Profession Or Occupation Date of Testimony

1. Mark S. Coleman Oklahoma State Department of Health Deputy Commissioner for Environmental Health Services November 28, 1989

2. Robert H. Harris ENVIRON Corporation Principal and senior vice president; environmental engineer November 28, December 11, 1989

3. Richard C. Bost ERM-Southwest, Inc. Principal and project manager; environmental engineer and certified ground water professional hydro-geologist November 28, December 11, 1989

4. Gary R. Hecox IT Corporation Senior staff consultant in hydrology November 28, December 7, 1989

5. James K. Mitchell University of California, Berkeley Professor of civil engineering; independent geotechnical engineering consultant December 1, 1989

6. Stephen Hahn (by deposition) CH2M Hill, Inc. Regional manager; geotechnical and structural engineer December 4, 1989

7. J. Mark Schmittle ERM-Southwest, Inc. Senior hydrogeologist December 4, 1989

8. W. Scott Keys Private consultant Consultant in borehole geophysics applied to the solution of groundwater problems December 4, 1989

9. Stavros S. Papadopulos S.S. Papadopulos & Associates, Inc. President; registered professional engineer December 4, 1989

10. Steven P. Larson S.S. Papadopulos & Associates, Inc. Vice president; groundwater hydrologist December 6, 1989

11. George E. Hoag University of Connecticut; Vapex Environmental Technologies, Inc. Director of the Environmental Research Institute and associate professor of civil engineering; director and founder of Vapex December 6, 1989

12. R. Leonard Allen IT Corporation Senior project director, Landfill Engineering Group; registered civil en-December 6, 1989

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gineer; registered geotechnical engineer

13. Richard A. Brown Groundwater Tech- Director of Chemical Technology December 7, 1989 nology, Inc.

14. Thomas A. Coopers & Lybrand Senior audit partner; certified pub- December 11, 1989 Matunas lie accountant

15. Benjamin Costello, Applied Hydrology Principal and president; hydrologist December 11, 1989 III Associates, Inc.

16. John A. Cherry University of Water- Professor of hydrogeology; self-em- December 12, 1989 loo, Ontario ployed consulting hydrogeologist

C. Rebuttal Witnesses Called by the Government

Witness Name Employer Business, Profession or Occupation Date of Testimony

1. Benjamin Burrell (by affidavit) United States Department of Justice Director of the Facilities and Administrative Services Staff, Justice Management Division December 12, 1989

2. Thaddeus L. Juszczak, Jr. (by affidavit) United States Environmental Protection Agency Director of the Resource Management Staff, Office of Solid Waste and Emergency Response December 12, 1989

3. Manfred van der Walde General Services Administration Director, Financial Management Division December 12, 1989

4. Harold W. Bentley University of Arizona Associate adjunct professor; hydro-geochemist December 12, 1989

5. Jere A. Strickland Chen-Northern Civil engineer December 12, 1989

6. Melvin L. Ritter United States Environmental Protection Agency Organic analytical chemist December 12, 1989

D. Sur-Rebuttal Witnesses Called by the Defendants

Business, Profession Date of Witness Name Employer or Occupation Testimony

1. Steven P. Larson S.S. Papadopulos & Vice president; groundwater hydrol- December 13, 1989 Associates, Inc. ogist

VII. FLAWS IN THE GOVERNMENT’S PROPOSED REMEDY

A.

Overview

1. The primary basis for the Court’s rejection of the government’s proposed remedy and its selection of the HSC remedy is fairly straightforward. The heart and soul of the government’s proposed remedy is excavation. While the Court was impressed with a number of the government’s soil vapor extraction witnesses, the Court was not persuaded at all by the few witnesses called by the government and the Consent Decree parties who testified in support of the appropriateness, feasibility, and safety of excavation. Other reasons for the Court’s remedy preference include the State of Oklahoma’s opposition to the government’s excavation proposal, the lack of due consideration given to the views of state authorities, the ambiguity of the excavation proposals presented in the government’s case, the unreliability of the government’s estimates concerning the number of intact drums in the main pit and barrel mound areas, the vacillating nature of the government’s proposed remedy, and the observations found in government documents concerning excavation and containment remedies at the Hardage Site. There are also other flaws in the govern

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ment’s remedy that are discussed more fully below.

2. The Court believes the public health, safety, and welfare and the environment are best served by the modified HSC remedy that will be ordered by the Court. The Court thus finds that the government has failed to establish the excavation aspect of its proposed remedy by a preponderance of the evidence. The Court also finds that excavation is similarly inappropriate for purposes of the Consent Decree.

3. While the Court considered studying the possibility of utilizing soil vapor extraction in connection with the HSC remedy, a review of all of counsels’ closing arguments and final comments to the Court,

28

as well as certain evidentiary factors identified by Dr. Richard Brown on December 7, 1989,

29

and testimony by other witnesses cited below, persuaded the Court that it should not attempt a hybrid remedy or include soil vapor extraction as part of the remedy ordered for the Hardage Site. Accordingly, there will be no soil vapor extraction component in the remedy ordered by the Court.

B.

Vacillating Nature of the Government’s Remedy

1. The government’s proposed remedy changed so many times during the course of this litigation, and in such drastic measures, that the Court lost confidence in the deliberative process underlying the government’s final proposal. The government’s final proposed remedy came so late in the litigation that the Court has difficulty believing that it was carefully considered.

2. Despite years of preparation, partial excavation combined with soil vapor extraction was not announced as a part of the EPA’s trial remedy until October 1989. GE 2 sec. 3.2.4, at 3-36.

3. The EPA’s ROD that contained the government’s selected remedy was not filed until November 22, 1989. This was the Wednesday before the Thanksgiving holiday. The trial of this case began on November 24,1989, at 7:30 a.m., the Friday after the Thanksgiving holiday. Allyn Davis, the EPA’s director of hazardous waste management for Region VI, signed the EPA’s ROD two hours after giving his deposition on November 24. It was not provided to defense counsel until the eve of the trial. The ROD contains boxes and boxes of materials. V at 1160-63.

4. The vacillating nature of the government’s proposed excavation remedy is demonstrated by comparing the deposition testimony of the EPA hazardous waste director, Mr. Davis, on November 22, 1989, with his trial testimony on November 30, 1989. V at 1162-67; VI at 1191-96. Also, the earlier EPA proposals involved excavating more than the barrel mound and main pit. V at 1125, 1130, 1134. The earlier EPA proposals advanced a “pin cushion” theory, under which the source areas would be lanced and drained. This proposal was abandoned prior to trial. IV at 873-74; V at 1135-36. Unfortunately, it is extremely difficult for the Court to evaluate a proposed excavation plan until the government has decided on an excavation proposal. V at 1117. Various government witnesses advanced more than three excavation proposals. V at 1103-04.

5. The government’s risk assessment was based on an approach, suggested in the government’s remedy design report, involving the extraction of liquids through wells prior to excavation; but that method was not advanced as part of the government’s trial remedy. GE 2 sec. 3.2.4, at 3-36; III at 450.

6. On the morning of December 1, 1989, upon questioning by the Court, defense counsel pointed out the different inconsistencies between Mr. Davis’ testimony, the EPA’s ROD, and the government’s proposed remedy. Government counsel acknowledged that there was an “error in the draftsmanship” of the ROD in that the ROD suggested vertical extraction wells in all three source areas, as well as pooled liquids in all three source areas, concepts clearly inconsistent with the government’s trial remedy. VI at 1191-96; V at 1162-67.

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7.The government’s changing remedies also adversely affected its evidentiary presentation at trial. One conceptual difficulty with a government expert’s soil vapor excavation feasibility model was that the model was prepared when the EPA’s lancing remedy was under consideration. This soil vapor extraction model, which was based upon a lancing theory, was not changed after the EPA’s excavation remedy displaced the lancing remedy. IV at 873-74; XII at 2359-60.

See

IV at 801.

C.

The Excavation Component of the Government’s Remedy

1. In addition to the remedy components suggested by the HSC, the remedy for the Hardage Site proposed by the EPA includes partial excavation of materials from the barrel mound and main pit, and soil vapor excavation in the barrel mound, main pit, and sludge mound. GE 2 at 2-1 to -4.

2. Excavation to remove buried hazardous wastes has been successfully implemented as a remedial measure at various hazardous waste sites around the country.

3. Excavation of buried hazardous wastes, including drums, is a recognized method of remediating hazardous waste sites. R. Davis R.Aff. at 3; V at 1098.

4. It is estimated that approximately 18,000 drums are buried in the barrel mound and the main pit. Supplemental Joint Statement of Uncontested Facts para. 81.

5. At the outset of the trial, the Court was logically and conceptually attracted to the government’s excavation remedy. Although countered by defense experts, three impressive government witnesses (Dr. Kirk W. Brown, Thomas Prickett, and John Robertson) testified that the contamination was spreading at the Hardage Site and that excavation would remove the bulk of the waste from the source areas before the contamination could spread further. None of these three witnesses, however, were presented to the Court as excavation experts. Indeed, had the government followed up these conceptual presentations with credible evidence concerning the feasibility, safety, and appropriateness of excavation at the Hardage Site, a different result might have occurred. It was in the practical aspects of excavation at the Hard-age Site that the government’s case fell apart.

6. The government called two witnesses to testify to the practical aspects of excavating the Hardage Site, Robert Davis and John Brack. Also, a Consent Decree party, United States Pollution Control, Inc. (“USPCI”), called Steve Beck to testify on the same point. By agreement of all parties, Mr. Beck’s testimony was to be considered by the Court for trial purposes as well as for the Consent Decree. The testimony of these witnesses totally failed to convince the Court that excavation was an appropriate remedy for the Hardage Site. In fact, this testimony convinced the Court of precisely the opposite — that the government’s proposed excavation plan was totally inappropriate for the Hardage Site.

7. The three government witnesses who testified about the planned excavation at the Hardage Site each described a different approach. V at 1103-04; IV at 745-50; III at 541-46.

8. The failure of the government to present a detailed, consistent proposal for drum excavation, an ultrahazardous activity, raises serious questions about the ability of the EPA to implement excavation safely at the Hardage Site. V at 1117.

9. Photographs of site operations indicate that intact drums were disposed of in the barrel mound and in the main pit in a haphazard fashion. DE 30 tab D. A recent test excavation in the main pit indicates that some intact drums remain buried. DE 168.

10. The barrel mound and the west side of the main pit were constructed haphazardly, resulting in drums lying in disarray within voids and channels within and around them. Schmittle Decl. at D-21 to -22; DE 30 tab D.

11. Excavation is not an appropriate remedy for the Hardage Site because of the way the drums were deposited and dumped. DE 30 tab D. At other hazardous waste sites, drums or barrels are placed in specific locations in a specific

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array. The placement of drums at the Hardage Site, however, was random.

Id.

IV at 752-829. The OSDH opposes the EPA remedy primarily because of the proposed excavation. Coleman Decl. at B-5; III at 588-620.

12. The OSDH is the agency of the State of Oklahoma, which is responsible for regulating the management and disposal of its hazardous waste, that should ensure the protection of the public health and welfare and the environment. The OSDH is the designated Superfund agency within the state.

See

Okla.Stat. tit. 63, §§ 1-2001 to -2021 (1981 & Supp.1987).

13. Before its trial remedy report was issued, the EPA had no discussions directed toward obtaining the OSDH’s views on the proposed excavation remedy. Ill at 610-11.

14. The EPA had not sought the OSDH’s views prior to selecting the excavation and vault remedy announced in the EPA’s 1986 ROD. Coleman Decl. at B-3.

15. The OSDH vigorously opposed excavation of the barrel mound and main pit, believing that harmful vapors could be released from the site and that fires or explosions could occur. Coleman Decl. at B-5; III at 588, 590, 620.

16. Excavation is not an appropriate remedy because of the inaccurate nature of the government’s estimates of the number of drums in the main pit and the barrel mound, and the speculative nature of the assumptions regarding the number of drums deposited at the Hardage Site that have ruptured and leaked. IV at 752-833; III at 565-66; VI at 1246-49; V at 1162-70.

17. Excavation experience at other sites suggests that only a small portion, less than 10%, of the drums remain intact and full of liquid. Ill at 560-62. The government’s assumption that more than 12,000 of the estimated 18,000 barrels at the site are full to the brim is fatally flawed. IV at 755-56, 739-833; III at 565-66.

18. Given the manner in which drums were thrown into the Hardage Site, many drums cannot be removed mechanically and placed into overpack drums without workers physically handling the drums. Ill at 522-53, 583; V at 1124-25. This poses serious risks to the handlers.

19. Although many buried drums can be detected as excavation proceeds using subsurface instrumentation, this instrumentation does not describe the nature of a buried drum, the extent to which it has collapsed, and the extent to which the workers may be exposed to contaminants as it is recovered.

20. Certain estimates provided during the testimony of government witness Robert Davis on November 29, 1989, suggesting that there are 660,000 gallons of drummed liquids, are substantially inflated. The evidence, to the contrary, suggests that most of the liquids are in the “known pooled liquids” category. IV at 739-833.

. 21. A critical issue in this case is the number of buried drums at the Hardage Site that remain intact and that have not leaked or ruptured. Given the fact that the evidence strongly suggests that most such drums have ruptured or leaked in some fashion, the marginal utility of excavation as a remedy declines. The evidence suggests that most of the leaked materials can be recovered through the pumping of known pooled liquids. Both the government and the HSC remedies call for such pumping. The legitimate safety concerns with respect to excavation at the Hardage Site, coupled with the marginal utility of excavation given the evidence regarding the number of ruptured drums, persuades the Court that excavation is not appropriate.

22. Contrary to what the EPA representatives told two citizen witnesses, excavation and soil vapor extraction will not remove 90% to 99% of the hazardous waste within 10 to 20 years. IV at 708-32. Groundwater and soil contamination problems will remain at the site forever. DE 175 at 3. Moreover, the Hardage Site can never be returned to its prewaste disposal condition under any remedy. V at 1174. The EPA simply supplied these citizens with copies of its experts’ affidavits and persuaded them that the EPA remedy was the best remedy for the citizens living near the Hardage Site. Critical information was

*1478

not supplied to these citizen witnesses. As a result the Court has placed little, if any, weight on this testimony offered in support of the government’s excavation remedy.

23. It is likely that very few of the drums remaining at the Hardage Site contain liquids. Schmittle Deck at D-21 to -22; DE 44 at 1, 7, table 1; DE 21 at 3-26, 4-1 to 4-2; DE 30 tab D. In another excavation effort, less than 500 drums were found intact in a 15,000 drum removal effort at a hazardous waste site. Ill at 560-62.

24. The review team leader for the EPA contractor responsible for preparing the 1986 Feasibility Study questioned the propriety of spending millions of dollars to remove the “source” of waste at the Hard-age Site, when the groundwater and soil contamination problems could never be eliminated. DE 175 at 3.

25. This review team leader of the EPA’s draft feasibility study, Steven Hahn, a geotechnical engineer who worked on hazardous waste sites, felt that a “fatal flaw” in the feasibility study was that it did “not carry at least one containment alternative through detailed evaluation.” DE 175 at 3. Mr. Hahn believed a viable containment alternative existed. He further noted that all of the excavation alternatives were “terribly expensive” and questioned the justification “for spending so much money on source removal, considering that extensive groundwater/soil contamination problems will remain at the site forever.”

Id.

at 1, 3. This document was offered into evidence by the HSC, and was received without objection. IV at 818-34.

26. Mr. Hahn also pointed out the following with respect to the 18,000 drums “assumed” to be at the Hardage Site:

I strongly suspect that most of these are empty now, or will be punctured and/or crushed in the process of excavating the landfill. That was our experience at Berlin and Farro.

DE 175 at 4.

27. Mr. Hannesschlager, a senior EPA enforcement official, in 1985 made a statement to the effect that the Hardage Site was not an imminent threat to the public. DE 174 at 3. In Mr. Davis’ opinion, he was qualified to render such a view. Mr. Davis is the hazardous waste director for the EPA’s Region VI. V at 1174-79.

28. Materials including DNAPL already have escaped from barrels outside the areas to be excavated, thus further reducing the viability of excavation. GE 19; IV at 830; V at 1163-64.

29. The Lyons Landfill site, upon which the government relied as an example of a successful drum excavation, involved fundamentally different conditions than those at the Hardage Site. Hecox R. Decl. at 3-4; III at 685-87.

30. The government’s excavation expert, Mr. Bruck, acknowledged that the government had not yet completed detailed plans for excavation. Excavation, according to Mr. Bruck would fall into one of three approaches. He could not tell the Court which approach should be used. V at 1094-1140.

31. Soil removed from the excavation site would have to be moved, perhaps more than once. R. Davis Rebuttal Aff. at 3-4; V at 1104-05.

32. Construction of the EPA remedy would require workers to spend significantly more person-hours in Level A and Level B protective equipment. Because this equipment severely restricts a worker’s mobility and leads to the buildup of heat within the equipment, implementation of the EPA remedy would increase the risk to workers of heat stress and heat stroke, particularly in the hot summer months. Harris Deck at C-18 to -23; III at 641-43; DE 141; V at 1112-14.

33. Excavating and handling buried drums containing unknown and potentially ignitable, flammable, or reactive chemicals is an ultrahazardous activity. Harris Supp. R.Decl. at 2-3.

34. The testing of intact drums containing unknown substances is an ultrahazardous activity that threatens workers with risks of fire, explosion, and chemical reactions as drums are opened to sample their contents. Harris Supp.R.Decl. at 3.

35. Workers cannot be completely protected from the risk of injury or death if an

*1479

explosion occurs during excavation. V at 1138; VI at 1236.

36. Although government witnesses assured the Court that measures would be taken to avoid subjecting workers to heat stress during the excavation, including training and scheduling work during cooler periods of the day or of the year, one excavation proposal envisioned workers in protective gear working in summer afternoons. GE 2 at 3-38; III at 523; Bruck Aff. at 4; V at 1105, 1107.

37. The government’s excavation witness, Mr. Bruck, acknowledged that he had little on-site experience. His work as a program manager involved minimal on-site experience. He testified that two excavation shifts could be utilized, one in the early morning and one in the afternoon. The workers would wear level B protection. Level B protection is high-level protection, involving suits, gloves, boots, respirators, etc. Level B protection poses heat stress problems for workers that can be alleviated by multiple work shifts. The notion, however, that workers could perform such work in Oklahoma in summer afternoon temperatures is at odds with the reality of the state’s summer weather. Excavation difficulties would be compounded because Mr. Bruck expected to uncover the type of drum arrays depicted in Defense Exhibit No. 30, tab D. V at 1105-40.

38. During the summer and winter months it may not be practicable, or even possible, to work in Level B protection on many days or for extended periods of time. Harris Deck at C-23; V at 1104, 1112.

39. In order to remove the drums during excavation, workers would necessarily have to handle drums physically and would work in close proximity to waste liquids and excavated drums. II at 206-07; V at 1129-30; DE 30 tab D; DE 44.

40. Because of the way the barrels were left at the Hardage Site (DE 30 tab D), the excavation would require some hand digging. The EPA proposes to use mechanized excavation to the maximum extent possible. V at 1093-1140.

41. Level A protection involves a fully contained, rubberized suit with a pressurized breathing apparatus. Level A gear provides more protection for the worker. The EPA’s proposed remedy would require that more than 50% of the excavation work be performed in Level A gear. The government’s excavation witness, Mr. Bruck, was not aware that the remedy report of the EPA and the Consent Decree require 50% of the excavation work to be performed in Level A gear. V at 1122.

42. The government’s excavation plans are more properly characterized as being at a general philosophical stage rather than at a specific stage. V at 1136; III at 567. The workers performing the excavation, however, realistically would be exposed to a serious risk. Y at 1106-41. This Court is not prepared to risk the safety and lives of Oklahoma workers on such tenuous plans and proposals.

43. The government’s remedy design document does not adequately describe the manner or method of excavation, or the actual procedures contemplated to address the risks of excavation. GE 2 sec. 3.2.4., at 3-36; V at 1106-41.

44. The drum excavation proposed by the EPA envisioned that the drums would be removed intact in order to avoid the release of liquids to the subsurface. II at 264. This plan is not supported by the likely condition of the remaining drums.

45. Drums encountered in the barrel mound would be in a deteriorated condition. Excavation could further crush or puncture the drums, causing substances in them to leak and react with potentially incompatible chemicals present at the site. Schmittle Deck at D-21 to -22; DE 30 tab D; DE 44; DE 179; Hecox III at 690; III at 588-89.

46. There were substantial discrepancies among the government witnesses regarding the amount of exposed surface area for the excavation working face, the plan of excavation, the disposition of soil, and the number of times soil would be moved, all of which adversely affected the Court’s ability to estimate the risks associated with excavation. GE 2 at 3-36 to -39; III at 544, 545, 442-46, 644-68; IV at 778-83.

47. Emission control measures would have to be implemented to prevent dust

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and vapor emissions during the excavation. These measures would include vapor suppressant foams, and might also include wetting agents, plastic sheeting, visqueen, clean soil, and other materials. R. Davis R.Aff. at 3-4; Bruck Aff. 7; GE 2 at 3-38; III at 543; V at 1101. The government’s nebulous plans regarding this critical and dangerous aspect of excavation do not justify inclusion of excavation as a remedy component for the Hardage Site.

48. Because wind gusts are likely during any excavation of the Hardage Site, the proposed use of a plastic covering to control vapor emissions from stored materials is unlikely to succeed. Bruck Memo (Oct. 5, 1988) (attached to Administrative Record, GE 234).

49. Excavation-based remedies selected by the EPA at various other sites, including the Petro Processors and Rocky Mountain Arsenal sites, have been delayed or reconsidered because of unacceptable vapor emissions. Harris Deck at C-7 to -8.

50. Excavation poses significant risks due to emissions. The dangerous short-term risk to workers is not outweighed by the alleged long-term benefits associated with excavation. The HSC risk expert, Mr. Harris, provided persuasive testimony to the Court regarding the dangers of excavation. Ill at 636-66. The Court found this testimony more persuasive than the testimony provided by the government’s risk assessment expert. II at 409.

51. The EPA remedy includes certain remedy components — excavation of the barrel mound, removal of liquids by vacuum truck, transportation of excavated wastes to a staging area, and construction, operation, and maintenance of the soil vapor excavation system — that create significant implementation risks in addition to the risks created by the remedy components common to the EPA and HSC remedies. Harris Deck at C-10 to -23; DE 140; III at 640, 643-44, 690-91.

52. Implementation of the government’s excavation plan will result in significant risks to local residents. Off-site cancer risks associated with the EPA remedy are understated; estimates of the off-site cancer risks associated with the HSC remedy are likely overstated.

53. Excavation will present a risk of fire, explosion, and physical injury from direct contact with hazardous wastes if incompatible wastes mix during the work. Harris Deck at C-10 to -15; DE 140; III at 640, 643-44, 690-91; VI at 1231, 1233.23.

54. Excavation of the barrel mound/main pit to remove drums and drummed wastes will cause off-site releases of exceedingly toxic substances, such as asbestos, that can contaminate soil and surface water near the site. Those substances can persist long after the remedy is constructed. Harris Deck at C-26, D-4.

55. The EPA failed to evaluate adequately the costs and risks associated with the handling, testing, storage, transportation, and incineration of drums, liquids, sludge, and other materials. Harris Supp. R.Decl. at 3.

56. The EPA’s remedy would place workers in closer proximity to hazardous wastes than the HSC remedy. The EPA remedy thus carries with it a greater risk of workers coming into direct physical contact with hazardous wastes and of being involved in construction-related accidents. Harris Deck at C-18 to -23; DE 141; III at 641-43; V at 1112-14.

57. Excavation of the barrel mound and main pit and soil vapor excavation in the source areas would result in more contaminants being released through vapor and dust emissions than will be released during construction of the HSC remedy. Harris Deck at C-10 to -23; DE 140; III at 640, 643-44, 690-91.

58. Even after excavation, pumping, and soil vapor extraction 500,000 gallons of waste would remain at the Hardage Site under the EPA remedy. IV at 860.

59. Dr. Eugene Meyer assumed, as did other witnesses for the government, that all of the barrels of chemicals deposited at the Hardage Site were full to the brim based on the fact that Mr. Hardage charged his customers on a per barrel basis. The Court cannot accept this assumption. There is no way of determining from

*1481

the logs the accuracy of the information as to what was delivered to the site, as the Hardage log simply reflects what the Hard-age employees were told when a load arrived. VI at 1245-49. Moreover, the assumption that these barrels remain intact and full today is without factual support.

60. Although drum removal and soil vapor extraction would reduce the volume of waste available for groundwater contamination, the site would not be cleaner as a result of soil vapor extraction and excavation in any time frame that can be envisioned. The site will always be contaminated. XI at 2092-2135.

61. The Court is not convinced by the testimony of the government witnesses that excavation of the barrel mound and portions of the main pit to remove buried drums and free-phase liquids can be implemented safely, minimizing or eliminating risks of injury to workers. Although Dr. Meyer is an exceptionally qualified and impressive witness in many areas, he has little expertise in any aspect of excavation, much less its practical aspects, and the Court has placed little weight on the government’s effort to have him testify in this area.

62. Excavation of the barrel mound and certain portions of the main pit to remove buried drums and free-phase liquids is not a feasible remedial action for the Hardage Site. The government witnesses’ primary point is that a workers’ health and safety plan

can

be devised for the EPA’s proposed remedy. Ill at 521-22; V at 1099. The Court, however, cannot order an excavation undertaking such as that proposed by the government (in any form) to proceed on the state of this record. The Remedy Phase was designated as the phase of this litigation in which the Court was to order a remedy for the site based on the evidentia-ry presentations of the parties. This Court has no intention of deferring a remedy decision to future excavation studies or plans that perhaps could be developed on any one of several excavation proposals. Cleanup at this site has been delayed long enough. If excavation is an appropriate remedy for the Hardage Site, the government has had more than ample opportunity to prove it. This was not done during the Remedy Phase.

63. Section 106 of CERCLA, 42 U.S.C. § 9606 , expressly provides the standard that a court must follow when awarding injunctive relief. That section states a court has “jurisdiction to grant such relief as the public interest and the equities of the case may require” in order to abate what may be “an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility_” 42 U.S.C. § 9606 (a) (1982).

64. Insofar as the cleanup standards contained in section 121 of CERCLA and in the national contingency plan regulations are binding upon the Court, and insofar as these standards may be considered by the Court, they require rejection of remedies that do not meet the threshold standard of protecting the public health and welfare and the environment.

See, e.g.,

CERCLA § 121(b), (d)(1); 40 C.P.R. § 300.68(a), (g)(3), (i)(l) (1989).

65. Excavation was developed and proposed as a remedy component without adequate consideration of site characteristics, and was based on incomplete information and incorrect assumptions about: (i) feasibility, effectiveness, benefits, and cost; (ii) the risk to workers and to the public from implementation; (iii) technical and practical compatibility with other remedy components; and (iv) the views of the State of Oklahoma. Bost Deck at D-30 to -32.

66. The excavation remedy proposed by the EPA presents unacceptable risks to workers, to nearby residents, and to the environment and relies on unspecified approaches that are not cost-effective and that are otherwise inappropriate for conditions of the Hardage Site.

67. The EPA excavation remedy does not satisfy the threshold requirements of sections 106 and 121 of CERCLA and NCP standards for remedies that must protect the public health and welfare and the environment.

68. The CERCLA provides that states shall have the opportunity to review and

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comment on proposed remedial actions. It does not provide that states shall have a concurrent role in the selection of remedial actions. 42 U.S.C. § 9621 (f)(1)(E) (Supp. V 1987).

69. The EPA has not provided the State of Oklahoma with an adequate opportunity to review and comment on the EPA’s proposed remedy for the Hardage Site. Ill at 586-629; GE 234; V at 1149-89.

70. Failure of the EPA to consult adequately with the OSDH on selection of an appropriate remedy for the Hardage Site is inconsistent with the state consultation requirement contained in section 121(f) of CERCLA. Coleman Deck at B-3 to -4.

71. A remedial action for the Hardage Site that is protective of human health and the environment and that is consistent with cleanup standards established by 42 U.S.C. § 9621 does not include excavation of the barrel mound and portions of the main pit to remove pooled liquids and liquids in drums.

72. Excavation and soil vapor extraction are not appropriate components of a remedy for the Hardage Site. Bost Deck at D-7 to -11; Cherry Deck at D-22; Harris Deck at C-40; IX at 1737.

73. The unique nature of the Hardage Site renders excavation a poor remedy based on the evidence presented.

D.

The Soil Vapor Extraction Component of the Government’s Remedy

1. Soil vapor extraction is a remedial technology that has been developed to remove volatile organic compounds from unsaturated soils and transfer them to the airstream; the treatment is both effective and well-demonstrated. Walter Aff. at 4; Danko Aff. at 6; IV at 843.

2. By creating subsurface air flow zones, soil vapor extraction can, under appropriate site conditions, increase the rate at which volatile contaminants will be removed from the source areas. Walter Aff. at 6; Walter R. Aff. at 6-7; Bentley Aff. at 4; IV at 898.

3. Soil vapor extraction can, under appropriate site conditions, reduce or eliminate the production of certain degradation compounds that are highly toxic and mobile in the subsurface environment. Walter Aff. at 3, 10.

4. Having rejected excavation, there is little need for further discussion of the soil vapor extraction component of the government’s remedy. Both a defense expert, Dr. Richard Brown, and government counsel have advised the Court against the idea of attempting to combine this feature of the government’s remedy with the HSC remedy. IX at 1730-49; XII at 2344. Moreover, the rejection of excavation has not made soil vapor extraction more attractive for the Hardage Site.

5. The Court has little doubt that soil vapor extraction can be an effective and important remedial technology for a number of hazardous waste sites. Indeed, the OSDH, while opposing the EPA remedy, supports the concept of soil vapor extraction. The use of soil vapor extraction at the Hardage Site, however, does have several shortcomings and potential pitfalls, including the following:

(a) Even when viewed in its best light, soil vapor extraction would remove less than 165,000 gallons of residual liquids from the Hardage Site, representing less than 10% of the 1.8 million gallons at the site. IV at 853; GE 54(a)-(b); GE 56.

(b) Even if the Court adopted the government’s remedy, some of the most mobile and most carcinogenic of the compounds found at the Hardage Site would be likely to volatilize (change from the liquid phase to the air phase) during excavation, thus undercutting the effectiveness of soil vapor extraction and posing a danger as well. IV at 861-62.

(c) Even after excavation, pumping, and soil vapor extraction, there will be approximately 500,000 gallons of waste left at the Hardage Site under the EPA remedy. IV at 860.

(d) The same results that could be achieved through soil vapor extraction will be obtained through natural diffusion processes. Soil vapor extraction, however, holds out the possibility of achieving these results in five years, as opposed to the thousands of years neces

*1483

sary for the natural process to take place. Unfortunately, no similar soil vapor extraction process has been in operation long enough to confirm such predictions for the Hardage Site.

(e) Sufficient data does not exist at this time to accurately predict the success of soil vapor extraction at the Hard-age Site. IV at 902. Gary R. Walter, an impressive government expert, testified that he knew of no site like the Hardage Site where soil vapor extraction has been successfully implemented. IV at 902. The model for the government’s remedy has not been validated at a similar site. IV at 903.

(f) Soil vapor extraction will not remove a significant number of semi-volatile compounds. IV at 906.

(g) Significantly, the soil vapor extraction proposed by the government would take place only after the government conducted tests to see if it was feasible. Thus, the soil vapor extraction component of the government’s proposed remedy is actually a pilot research program that may ultimately be rejected even if pursued initially. The total cost of the soil vapor extraction system that would be borne by the soil vapor extraction group under the Consent Decree is $12,-168,000. None of the soil vapor extraction witnesses for the government could affirmatively recommend soil vapor extraction as an appropriate remedial action at the Hardage Site. V at 1138; GE 395; II at 305-50, 382-86; IV at 865, 900-08.

(h) Site conditions often determine the effectiveness of soil vapor extraction. Given the problems the Court has found with excavation of the Hardage Site, which one witness has credibly testified would exacerbate any soil vapor extraction effort, the Court is not inclined to order this promising technology for the Hardage Site. IX at 1730-49.

(i) The EPA-proposed remedy requires more operation and maintenance activity than the HSC remedy because of the soil vapor extraction component. DE 16 tables 7.2 & 7.3, at 3; R. Davis R. Aff. table 1, at p. 12 of 12.

6. In short, while the experts on both sides of the soil vapor extraction issue were persuasive, the soil vapor extraction issue cannot be viewed in isolation. The government experts have convinced the Court that soil vapor extraction is an attractive, effective, and promising remedial technology for certain hazardous waste sites. While the Court discounts much of the criticism leveled at this component of the government’s proposed remedy, including that of HSC expert Dr. Hoag, the Court is not convinced, in light of the failure of proof on the government’s excavation component, as well as the other issues outlined above, that soil vapor extraction is appropriate for the Hardage Site.

7. Similarly, under the range of plausible site conditions, based on industry experience at other hazardous waste sites, the Court is not convinced by a preponderance of the evidence that soil vapor extraction technology is a feasible and effective technology for the removal of volatile organic compounds from the source areas at the Hardage Site.

VIII. REMEDIAL ACTION TO BE TAKEN IN THIS CASE — ADOPTION OF THE PRIMARY FEATURES OF THE HSC REMEDY

1. From a remedy selection standpoint, the Court finds in favor of the HSC’s containment remedy as opposed to the government’s excavation/soil vapor extraction remedy. The Court specifically finds that the defense has proved the appropriateness, safety, and feasibility of this remedy by a preponderance of the evidence.

30

Aside from the conceptional and technical flaws associated with the government’s proposed remedy, which are discussed above, the additional reasoning for this remedy preference is set forth below. The Court will, however, order certain modifications to the HSC’s proposed remedy. As set forth below, the remedy ordered by the Court generally adopts the HSC’s proposal

*1484

concerning recovery wells in the barrel mound, a V-shaped interceptor trench, a southwest line of interceptor wells, surface water monitoring, a water treatment system for groundwater, and institutional controls. The Court, however, also will order liquid recovery wells to be placed in the main pit in light of (1) the clear evidence presented at trial of barrel deposits in the main pit area, and (2) the failure of the HSC remedy to provide for such wells. A cap that was proposed by the HSC will be utilized at the site.

2. In general, the remedy for the Hard-age Site proposed by the HSC consists of a composite cap over the source areas, liquid recovery wells in the barrel mound (and possibly part of main pit), a V-shaped interceptor trench, interceptor wells in the southwest corner of the site, a water treatment system for groundwater collected from the trench and wells, institutional controls, natural attenuation of the alluvial groundwater, and groundwater and surface water monitoring. DE 16 at 1-4. The Court adopts this remedy with the addition of liquid recovery wells being mandated for the main pit, and any other changes noted below. Except as modified in this Order, the remedy ordered in this case shall be in accordance with the HSC remedy design documentation.

3. The HSC remedy was designed to address in a comprehensive way management of the wastes present at the Hardage Site. DE 16 at 1-1.

4. Few if any hazardous waste sites have been studied as thoroughly and as comprehensively by both the government and defendants as the Hardage Site. V at 987-88; Schmittle Decl. at D-2 to -8, D-20 to -29; Cherry Decl. at D-8.

5. EPA Director of Hazardous Waste for Region VI Allyn Davis believes there are liquids that can be pumped at all three source areas at the Hardage Site. V at 1163-64. In the Court’s view, this testimony corroborates the effectiveness of the HSC’s proposed pumping, as well as the Court’s decision to order pumping from the main pit area.

6. Mr. Davis outlined the four means through which the agency planned to achieve its goal of protecting public health at the site: to restrict public exposure to contaminants through surface water, groundwater, the atmosphere, and direct contact. V at 1186. The HSC remedy meets these goals. IX at 1797-98.

7. Four routes for constituent migration from the Hardage Site can be identified: (1) surface or overland flow during site operations; (2) surface or overland flow currently exiting the southwest corner of the site; (3) groundwater flow through fractures in Strata I, II, and III; and (4) groundwater flow through pore spaces of the rock in Strata I, II, and III. DE 111; VII at 1420.

8. The primary route by which constituents have migrated from the source areas to the alluvium of NCC is overland flow or surface runoff. Schmittle Decl. at D-18 to -20; DE 30 tabs B & C; DE 36.

9. Humans potentially may be exposed to hazardous substances released at or from the Hardage Site through four potential pathways for exposure: groundwater migration, surface water migration, air emissions, and direct contact. DE 15 at 4-la; Bost Decl. at D-3 to -4, D-9; DE 111; DE 177; III at 672; V at 1186; IX at 1797.

10. Despite the migration that has occurred, the Oklahoma water quality standards for the waters of NCC have never been exceeded. II at 202, 226; V at 1010, 1179; VIII at 1602.

11. Neither the HSC nor the EPA proposed a remedy that would remove all contaminants from the Hardage Site. Moreover, neither proposed remedy would make the site suitable for use by animals or humans in the foreseeable future. DE 179; II at 201; IV at 805; V at 1174-75.

12. A remedy for the Hardage Site that controls the surface water pathway, precludes site access and direct contact with waste, controls air emissions from the source areas, precludes the use of affected groundwater, and provides for a contingent response to ensure continued maintenance of the quality of NCC goes a long way toward the protection of public health and welfare and the environment. Bost Decl.

*1485

at D-3 to -7, D-10 to -11; DE 112; III at 672-76.

13. A remedy consisting of the following components would arguably would be effective to address the remedial objectives identified in Finding No. 12: a cap, surface water monitoring, groundwater monitoring, institutional controls, and contingency plans. Bost Decl. at D-6 to -11; Cherry Decl. at D-23 to -25; XI at 2107.

14. The HSC remedy with the modifications ordered by the Court: achieves the remedial objectives identified in Finding No. 12 necessary to protect the public health and welfare and the environment; affords a further measure of protection to the NCC alluvium and NCC by cutting off migration of constituents from the site; accomplishes a further reduction in the already low potential risks to the public health and welfare and the environment posed by the Hardage Site; and captures and removes contaminated groundwater and non-aqueous phase liquids for treatment. Hecox Decl. at D-2 to -3; DE 26; Cherry Decl. at D-25 to -26; Bost Decl. at D-ll; DE 112; XI at 2108.

15. The HSC remedy as modified eliminates all four potential pathways for exposure to substances at the Hardage Site. IV at 1797; V at 1186-87.

16. The HSC remedy, consisting of the following primary components, other components described in the HSC Preliminary Design Report (DE 16), and certain modifications as indicated below, is protective of the public health and welfare and the environment and should be implemented at the Hardage Site:

(a) V-shaped, gravel-filled interceptor trench constructed at the top of Stratum IV to provide hydraulic control of the source areas by capture and removal of affected groundwater and non-aqueous phase liquids for subsequent treatment. Hecox Decl. at D-4 to -5; DE 60 & 88; II at 221; VIII at 1589; IX at 1788.

(b) Composite cap over source areas to prevent direct contact with wastes, to control surface water flow in source areas, to limit erosion of affected soils, to reduce infiltration of precipitation, and to provide passive gas collection and treatment. He-cox Decl. at D-4; DE 93 & 94; VIII at 1697-99.

(c) Permanent vertical liquid recovery wells in the barrel mound and the main pit to extract pumpable liquids for off-site treatment by incineration and disposal in order to protect the stability of the barrel mound and main pit and to reduce the volume of free liquids. Hecox Decl. at D-4; DE 92; Finding No. 26

infra;

IX at 1789-1818. In the event off-site disposal of pumpable liquids is unavailable, the

Hard-age

defendants shall submit an alternative plan to the United States and to the Court for incineration and disposal of such wastes.

(d) Southwest interceptor wells to prevent migration of affected groundwater into the NCC alluvium (in conjunction with the V-shaped interceptor trench). Hecox Decl. at D-4; DE 60 & 88; II at 223.

(e) Water treatment system to treat groundwater collected from the trench and wells to standards applicable for discharge into NCC. Hecox Decl. at D-4; DE 95; IX at 1796. The water treatment system will be operated in such a way as to avoid commingling of liquids from different remedy components without EPA approval. This limitation on commingling does not preclude the commingling of liquids from the V-shaped interceptor trench, vertical liquid recovery wells in the barrel mound and main pit, and the underdrains beneath the cap as shown on Figure No. 18 of the HSC Preliminary Design Report (DE 16) with each other.

(f) Natural attenuation and, if necessary, control of migration of constituents presently found in the alluvial groundwater to effect cleanup of the alluvial groundwater and to prevent significant expansion of the area of affected groundwater. Hecox Decl. at D-4; VIII at 1595.

(g) Institutional controls to limit public access to affected areas, to prohibit future withdrawal of affected groundwater, and to continue the public water supply to area residents. Hecox Decl. at D-2, D-4; DE 97.

(h) A groundwater and surface water monitoring system to monitor groundwater

*1486

and surface water for continued effectiveness of the remedy. Hecox Decl. at D-4; DE 97.

17. Strata IV, V, and VI, which -will constitute the “bottom” of either the HSC or the EPA remedy, are characterized by the following four natural features:

(a) Low permeability (Strata IV and V);

(b) No material hydraulically conductive fractures;

(c) Saline water; and

(d) Sluggish flow in Strata VI, which will preclude migration of constituents to any usable water supply for millions of years. XI at 2103, 2129.

18. Constituents, including any DNAPL, which have left or will leave the source areas, generally will migrate laterally through Stratum I, II, and III toward the HSC’s proposed V-shaped interceptor trench and southwest interceptor wells. Here they will be captured, removed, and treated. Larson Decl. at D-8 to -10; DE 58, 60 & 88; II at 221-23; V at 1026; V at 1182; V at 1069; VIII at 1590-94.

19. The area of affected groundwater at the Hardage Site extends to the east from the source areas toward the east farm ponds and to the west and southwest into the NCC alluvium. Schmittle Decl. at D — 16—17; DE 33, 34 & 35.

20. Groundwater flow currently discharging into the east farm ponds will be reversed by the V-shape trench and will instead discharge into the trench. Larson Decl. at D-9 to -10; Hecox Decl. at D-6; DE 60; II at 220.

21. Given the nature of the subsurface geology in the southwest corner of the site, the use of interceptor wells there instead of a trench will present less construction uncertainty and less risk to workers during installation. Hecox Decl. at D-7; VIII at 1706-07.

22. The southwest interceptor well system can be constructed and operated to prevent migration of affected upgradient groundwater into the alluvium of NCC and will be as effective in providing hydraulic control of groundwater flow as would a trench. Hecox Decl. at D-6 to -7; Larson Decl. at D-6 to -10; II at 223-24; VIII at 1706-08; V at 1024.

23. By utilizing a southwest well system instead of the trench proposed by the government, the wells will have overlapping spheres of influence, and will be easier to extend than a trench. VIII at 1706-07. The government concedes that there is no significant difference between the trench system and the well system, or significant advantage of one over the other.

24. Aqueous and non-aqueous phase liquids are present at the base of the barrel mound and have been successfully pumped. This indicates that their removal by pumping is feasible during remediation. Schmit-tle Decl. at D-23.

25. Defense Exhibit No. 26 shows the proposed HSC remedy with vertical liquid extraction wells, trenches, etc. Defense Exhibit No. 108 shows the barrel mound with vertical extraction wells under the HSC remedy. With the exception of the modifications discussed in this order, these exhibits provide an accurate overview of the remedy ordered for the Hardage Site.

26. An HSC witness, Mr. Hecox, testified that there are no vertical extraction wells in the main pit under the HSC proposal “because that is an area where Mr. Hardage apparently did not dispose of any drums.” IX at 1789. In response to the Court’s questioning, Mr. Hecox modified this testimony, stating instead that there were no “significant quantities” of drums in the main pit area.

Id.

The magnetometer tests, however, show that there are barrels there. GE 2 fig. 3-8; DE 30 tab D. Considering also the cross-examination on this issue by government counsel, the Court finds that Mr. Hecox was impeached on this point. IX at 1801-18. There is in fact a considerable concentration of drums on the west side of the main pit.

27. The vertical liquid extraction wells can be constructed and operated effectively to remove existing pumpable liquids in the barrel mound and the main pit, and to remove any liquids that later drain into these source areas. Hecox Decl. at D-7; IX at 1792, 1821-22..

*1487

28. Vertical liquid extraction wells at the spacing proposed by the HSC “can effectively remove pumpable waste liquids and contaminated water” from the barrel mound and main pit. Robertson Aff. at 10-11; IX at 1791-92.

29. Vertical liquid extraction wells, given the conditions at the Hardage Site, are a substantially safer method for removing liquids from the barrel mound and the main pit than excavation. IX at 1791. If drums corrode or collapse, the liquid will be picked up by the vertical extraction wells. IX at 1792. There is to be no termination of the vertical extraction wells absent a court order because of the possibility of continuing corrosion and collapse of drums.

30. The primary function of the cap is to prevent direct access of people and animals to potentially contaminated materials at the site. Differential settlement could occur after the cap is installed, attributable to collapsing or disintegrating drums. There are, however, similar problems with the government’s proposed cap as well. VIII at 1698-1726. Mr. Allen described the defendants’ proposed landfill cap. It has vegetation on the top of it. It is intended to be a permanent cap. It includes a passive vapor control system. VIII at 1697.

31. The Court is unable to see any significant advantages in choosing either the government’s proposed cap over the defendants’ proposed cap, or vice versa. Consistent with the suggestion of the government’s counsel in closing arguments, the Court, having now selected the HSC remedy, will adopt the HSC’s cap proposal rather than the government’s. XII at 2344. However, as noted in Finding No. 63 below, certain modifications will be ordered to the cap.

32. A preload constructed over the barrel mound and over a portion of the main pit will minimize long-term total and differential settlements, thereby minimizing the long-term maintenance costs of the cap. Allen Decl. at D-5; VIII at 1697-98.

33. A multilayer cap system consisting of a vegetative cover, topsoil, a clean select fill and drain layer, a recompacted fine-grain layer, and a gravel gas collection layer can be constructed at the Hardage Site and will limit infiltration, will control surface runoff, will control gas emissions from the source areas, will prevent physical exposure to waste material, will control seepage from the sides of the mounds, and will satisfy applicable regulatory requirements. Allen Deck at D-6 to -7; Hecox Deck at D-8 to -9; VIII at 1697-1700. The modifications set forth below as suggested by the OSDH shall also be incorporated.

34. The remedy proposed by the HSC provides for long-term monitoring and maintenance of the cap. VIII at 1727. If problems with the cap develop, they are to be promptly brought to the attention of the Court.

35. Toe drains installed at the base of the cap along the west, south, and north sides of the source areas will collect any lateral seepage. Hecox Deck at D-9; VIII at 1697.

36. The groundwater treatment system proposed by the HSC will be effective in reducing the volume, toxicity, and mobility of any constituents present in the construction phase storm water runoff and in the groundwater recovered from the V-shaped interceptor trench and southwest interceptor wells. Hecox Deck at D-9 to -10; II at 222; V at 1173.

37. Institutional controls, including the acquisition of interests in adjacent property, an alternative water supply, and site security are necessary at the Hardage Site under either the HSC remedy or the EPA remedy in order to eliminate unauthorized withdrawal and use of affected groundwater from the original Hardage Site and the NCC alluvium. Hecox Deck at D-2, D-10 to -11; V at 1180.

38. The HSC’s proposed monitoring program will produce the data necessary to assess the operation of the following remedial components: hydraulic control of the V-shaped interceptor trench and southwest interceptor wells, liquid levels in the vertical liquid extraction wells, flushing of the NCC alluvium, and movement of constituents in the alluvium. Hecox Deck at D-ll to -12.

39. It is a common practice among scientists and engineers addressing hydrogeo-

*1488

logic issues to base conclusions about subsurface conditions on information derived from boreholes that sample only a small portion of the whole site area. XI at 2103-04.

40. The subsurface geology of the Hardage Site to a depth of about 300 feet consists of six distinctive bedrock strata (Strata I-VI) with separate hydraulic properties. These major lithologic units are unbroken by faults or major offsets of any kind, are laterally continuous across the site and for several miles, and are flat lying (or nearly so). Schmittle Deck at D-8 to -11, D-13 to -14; Mitchell Deck at D-3 to -4; Keys Deck at D-5 to -7; Papadopu-los Deck at D-4 to -5; DE 27, 28, 29, 30 tab A, 53, 54 & 57; VI at 1343-44.

41. Based on the geophysical logging at the site, it is possible to correlate stratigraphic units under the site and to identify a predominance of mudstone. DE 53, 54-57; VII at 1473-75.

42. Hydrogeologically, the site is characterized by a “fresh water zone in the shallow bedrock (Strata I, II, and III) that flows toward and discharges to the alluvium” of NCC, plus a “saline zone (Stratum VI) that underlies the fresh water zone and is hydraulically separated from it” by the low hydraulic conductivity mudstones and silty mudstones of Strata IV and V. Schmittle Deck at D-13.

See

DE 27, 28 & 29.

43. The lower part of Stratum IV (below elevation 1,020 mean sea level (m.s.l.)) and Stratum V have extremely low permea-bilities or hydraulic conductivities. Taking into account the results of packer tests, laboratory tests, pressure pulse tests, water level recovery tests, and regional modeling, the horizontal hydraulic conductivities of these strata are indicated to be on the order of 10 ~8 centimeters per second (cm/s) and the effective metrical hydraulic conductivities are in the range of 10 _1° to 10 ~12 cm/s. Papadopulos Deck at D-4 to -16.

44. The extremely low permeabilities result in the vertical flow of water downward through Strata IV and V being very slow, requiring approximately 40,000 years for water to travel one foot into the mudstone. Papadopulos Deck at D-19; DE 67; VII at 1520.

45. The presence of saline water at a depth beneath the site indicates that the material above the saline water is of very low permeability, as it has not permitted a downward recharge of fresh water from the surface. VII at 1475.

46. The geochemical evidence from the chloride leach tests supports the hydraulic evidence that groundwater flow in Strata IV and V is extremely slow. Cherry Deck at D-ll to -13; XI at 2099-2103.

47. In the light of chloride profiles for Stratum IV, lateral groundwater movement below the upper 20 feet of Stratum IV, as depicted in Government Exhibit No. 95, is highly unlikely. XI at 2100.

48. No credible evidence of interconnected, hydraulically conductive fractures in Stratum IV and V of the site has been found. Cherry Deck at D-13 to -18; Keys Deck at D-8 to -9; II at 173-74; VII at 1476-78, 1499, 1504; VII at 1519, 1522; XI at 2100-02.

49. Any fractures that might be present within the lower portion of Stratum IV (below 1,020 feet m.s.l.) and V do not constitute significant pathways for constituent movement; any movement of contaminants that might occur would be to Stratum VI, which is characterized by saline water and extremely sluggish flow, and thus such movement, if it should occur, would not constitute a threat to the public health and welfare or the environment. Cherry Deck at D-13 to -19; XI at 2101-03.

50. The Stratum IV mudstone is very stable geologically and will not shrink or crack when exposed to deionized water, saline water, waste-containing water from the Hardage Site, or DNAPLs. Mitchell Deck at D-3 to -4, D-6 to -7; DE 30 tab F; VI at 1345, 1349-56.

51. Strata IV and V form an effective, regionally extensive, and continuous hydraulic barrier to vertical migration of constituents. Cherry Deck at D-20; VII at 1522.

52. The water beneath Stratum III has no foreseeable value as a water resource

*1489

for either human consumption or agricultural purposes. Cherry Decl. at D-10; VII at 1473; XI at 2098, 2103, 2130.

53. Stratum VI is a zone of lateral groundwater flow in which the flow rate is negligible, even when considered over thousands of years. Cherry Decl. at D-19; VII at 1521; VIII at 1647-48; XI at 2103, 2129-30.

54. The travel time of any contaminants through the lower portion of Stratum IV and through Stratum V to the saline water in Stratum VI, and eventually to the Wa-shita River, would be on the order of millions of years. VII at 1421; VIII at 1647-48.

55. For the implementation of the HSC remedy, the maximum individual lifetime cancer risk is “considerably less than that considered acceptable under the EPA’s published guidelines.” Harris Decl. at C-24.

See

Harris Decl. at C — 33; III at 648-50.

56. The cancer risk associated with implementing the HSC remedy is substantially less than that of implementing the new EPA excavation and soil vapor extraction remedy. Harris Decl. at C-24; DE 139; III at 648-50.

57. Implementation of the HSC remedy “will not result in either significant short-term or long-term public health risks to off-site residents.” Harris Decl. at C-24;

see id.

at C-33.

58. The estimated cost of the HSC remedy, including major capital replacement contingencies, operation, and maintenance, in 1989 dollars, is $53,952,000. DE 16 tables 7.1 & 7.2; DE 98(a), (b).

59. Section 106 of CERCLA, 42 U.S.C. § 9606 , expressly provides the standard that a court must follow when awarding injunctive relief. Section 106 provides that a court has “jurisdiction to grant such relief as the public interest and the equities of the ease may require” in order to abate what may be “an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility_” 42 U.S.C. § 9606 (a) (1982).

60. The HSC’s remedy as modified by the Court protects human health and the environment and complies with ARARs, provides long-term effectiveness and permanence, reduces the toxicity, mobility, and volume of the wastes, provides short-term effectiveness, is easily implemented, and is cost effective. Bost Decl. at D-15 to -17; Hecox Decl. at D-13 to -14; Coleman Decl. at B-4; IX at 1797-99.

61. The HSC has kept the OSDH informed about site investigations and the remedy selection process since the HSC first became involved at the site. Coleman Decl. at B-4; III at 612.

62. The OSDH supports a remedy consisting of the components of the HSC remedy, but with a cap having a thicker clay layer than that currently proposed by the HSC, and with a system for removing vapors that gather in the gas collection layer under the cap. Coleman Decl. at B-4-5; IX at 1799.

63. The HSC remedy shall be modified to meet the OSDH’s preferences about the thickness of the clay cap and about an active gas removal system under the cap. IX at 1799.

64. The HSC remedy is fully developed and can be readily implemented to address conditions at the Hardage Site. The HSC’s proposed remedy as reflected in the HSC remedy design documentation contains sufficient detail and specificity so that it may be ordered in a mandatory injunction under section 106 of CERCLA subject to the modifications herein.

65. There are approximately 1.8 million gallons of liquid waste at the Hardage Site. IV at 853, 860. Under the HSC remedy a significant amount of liquid will remain in the source areas, particularly the barrel mound. This is also true, however, of the government’s proposed remedy, which would leave at least 500,000 gallons in the source areas even after the proposed excavation and soil vapor extraction. IV at 860.

66. Insofar as the section 121 cleanup standards are applicable or may be considered by the Court, the HSC’s proposed remedy best satisfies those standards.

*1490

(a) The HSC’s proposed remedy complies more fully with the provisions in CERCLA that require that remedies address the “persistence, toxicity, mobility, and propensity to bioaccumulate of ... hazardous substances and their constituents.” CERCLA § 121(b)(1)(C), 42 U.S.C. § 9621 (b)(1)(C) (Supp. V 1987). The HSC remedy will not release as much dust and vapor into water, soils, and vegetation surrounding the site, and therefore is less likely to introduce chemicals into the food chain that may bioaccumulate and cause cancer and other adverse health effects.

(b) The EPA’s proposed remedy, in contrast to the HSC’s remedy, presents a significant “short- and long-term potential for adverse health effects from human exposure.” CERCLA § 121(b)(1)(D), 42 U.S.C. § 9621 (b)(1)(D) (Supp. V 1987).

67. The HSC defendants have proven by a preponderance of the evidence, and also by the clear weight of the evidence, that the HSC remedy, as modified herein, best:

(a) satisfies the section 106(a) standards for health and welfare and the environment;

(b) satisfies, and is most consistent with, all applicable or relevant section 121 cleanup standards; and

(c) satisfies, and is most consistent with, all applicable or relevant NCP standards.

IX. CONSENT DECREE FOR IMPLEMENTATION OF PARTIAL REMEDIAL ACTION

A.

Introduction

On the eve of trial, three days before the scheduled opening statements in the trial of the Remedy Phase, the United States on November 21, 1989, lodged with this Court a Consent Decree for the Implementation of Partial Remedial Action: Source Excavation and Soil Vapor Extraction (“Consent Decree”). By the provisions of the Consent Decree, eight defendants and six federal entities agreed to pay for and perform certain elements of the United States’ desired remedy for the Hardage Site. Based on the Consent Decree, and the fact other defendants allegedly agreed to implement the remainder of the United States’ remedy proposal, the government argued that no Remedy Phase trial should be held. United States’ Pretrial Brief at 2. However, the HSC defendants strongly opposed the proposed settlement and its approval in a brief submitted on November 22, 1989, and demanded that the Court reject the decree out of hand. HSC Brief in Opposition to Proposed Carve-Out Settlement at 3. Alternatively, the HSC requested that the Court defer consideration of the Consent Decree until after the Remedy Phase trial.

31

Id.

at 34 .

After hearing arguments on November 24, 1989, and considering the procedures for lodging and standards of review for consent decrees, the Court rearranged the trial schedule to take testimony concerning the Consent Decree. I at 62-66. Eight expert witnesses testified on behalf of the United States and the settling defendants concerning the hazardous wastes at the Hardage Site, technical aspects of the remedy elements of the Consent Decree, and their implementation. Four HSC experts disagreed with the appropriateness of excavation and soil vapor extraction for the Hardage Site. In addition, the HSC presented excerpts of the deposition of an EPA official.

At the close of the presentation, the Court found the record on the Consent Decree to be inadequate. Ill at 705. Questions concerning the wisdom of soil vapor extraction and excavation at the Hardage Site remained, together with concerns about the contribution provisions of the decree.

Id.

In addition, the Court desired to ensure that the remedy “imposed in connection with the Hardage site is in the public interest.” Ill at 706. Accordingly, the Court took the Consent De

*1491

cree under advisement and directed the rest of the Remedy Phase trial to proceed.

Id.

Earlier sections of this Order discuss the Court’s findings of fact and conclusions of law concerning the flaws in the United States’ proposed remedy and the remedial action to be implemented at the Hardage Site.

See supra

Sections VII & VIII. The Court now considers the Consent Decree.

On January 25, 1990, the United States filed a motion to enter the Consent Decree as an order of this Court. The motion reflected that Mark S. Coleman of the OSDH had filed comments on December 20, 1989, expressing concerns about the risks created by excavation of the Hardage Site. The United States responded to each of Mr. Coleman’s comments in its motion. The HSC defendants responded on February 8, 1990, in opposition to the entry of the Consent Decree. For the reasons set forth below, the United States’ motion for entry of the Consent Decree is DENIED.

B.

Legal Discussion

1. Statutory Authority

The CERCLA authorizes agreements concerning response and remedial actions. Under section 122, the President may enter agreements with potentially responsible persons to perform any response action if:

the President determines that such action will be done properly by such person. Whenever practicable and in the public interest, as determined by the President, the President shall act to facilitate agreements under this section that are in the public interest and consistent with the National Contingency Plan in order to expedite effective remedial actions and minimize litigation.

42 U.S.C. § 9622 (a) (Supp. V 1987). The CERCLA mandates the filing of such agreements in the appropriate United States District Court as consent decrees at least 30 days prior to entry of a final judgment. 42 U.S.C. §§ 9622 (d)(1)(A), (d)(2)(A) (Supp. V 1987). The act requires a comment period for persons not named as parties to the action. 42 U.S.C. § 9622 (d)(2)(B) (Supp. V 1987).

In this instance, the United States filed the Consent Decree on November 21, 1989. Therefore, the 30-day comment period expired on December 21, 1989.

2. Standard of Review

When this Court approved the $11 million Consent Decree for

De Minimis

Settlement and entered it as a judgment of this Court on September 22, 1989, the Court applied the articulated standard of review: whether the settlement is fair, reasonable, and consistent with the purposes of CERCLA.

See

Transcript of Sept. 22, 1989, Hearing at 59 (Oct. 2, 1989);

City of New York v. Exxon Corp.,

697 F.Supp. 677, 692 (S.D.N.Y.1988). In reaching this determination, a court considers “the strength of the plaintiff’s case, the good faith efforts of the negotiators, the opinion of counsel, and the possible risks involved in litigation if the settlement is not approved.”

Id.

(citing

United States v. Hooker Chems. & Plastics Corp.,

540 F.Supp. 1067, 1075 (W.D.N.Y.1982)).

32

The Court makes these inquiries to “determine whether the decree adequately protects the public interest.”

Id.

(citing

United States v. Conservation Chem. Co.,

628 F.Supp. 391, 400 (W.D.Mo.1985)).

In enacting the 1986 amendments of CERCLA, Congress sought to “expedite effective remedial actions and minimize litigation.” 42 U.S.C. § 9622 (a) (Supp. V 1987). Settlements achieved through extensive arms-length negotiations, and approved by all counsel and the agency charged with implementation of environmental statutes enjoy a strong presumption of validity.

Hooker Chems. & Plastics,

540 F.Supp. at 1080 . During settlement proceedings, a court should ensure “that

*1492

the settlement protects public health and the environment to the greatest extent feasible under currently existing technology.”

Id.

at 1073 .

Where a consent decree involves remedial action, a court assesses reasonableness by considering:

1) the nature and extent of the potential hazards at the site; 2) the availability and likelihood of alternatives to the Consent Decree which would result in cleanup of the surface of the site; 3) the adequacy of the technical proposal of the work which will be undertaken; 4) the extent to which the Consent Decree furthers the goals of the statutes which form the basis for this litigation; 5) the extent to which the Court’s approval of the Consent Decree is in the public interest.

United States v. Seymour Recycling Corp.,

554 F.Supp. 1334, 1339 (S.D.Ind.1982).

Finally, a court attempts to strike a balance between policies favoring settlement and the need to safeguard the public interest in environmental cases. In

United States v. Carrols Development Corp.,

454 F.Supp. 1215 (N.D.N.Y.1978), the court summarized the test:

It is not the Court’s function to determine whether this is the best possible settlement that could have been obtained, but rather the Court’s duty is to determine “whether the settlement achieved is within the reaches of the public interest.”

454 F.Supp. 1215, 1222 (N.D.N.Y.1978) (quoting

United States v. Gillette Co.,

406 F.Supp. 713, 716 (D.Mass.1975)).

C.Witnesses

Eight primary witnesses appeared on behalf of the United States and the settling defendants in support of the approval of the Consent Decree. The witnesses and the topics of their testimony were: Dr. Kirk W. Brown, source area strength and volumes; Marc A. Jewett, hydrogeological considerations; Joseph P. Danko and Dr. Harold W. Bentley, soil vapor extraction feasibility; Dr. Annette M. Shipp, risk assessment of excavation and soil vapor extraction; and Murdock John Cullinane, Jr., comparative costs of the competing remedy proposals. Two USPCI employees, Mary Ann Heaney and Steven A. Beck, testified concerning the safety of excavation. Portions of other witnesses’ testimony were also offered by the parties on the Consent Decree issue.

Four primary HSC witnesses testified in opposition to the Consent Decree and the technical aspects of the remedy elements. These witnesses and the topics of their testimony were: Mark S. Coleman, the Oklahoma State Department of Health’s evaluation of the competing remedy proposals; Dr. Robert H. Harris, comparative risk assessment; Richard C. Bost, endangerment assessment following implementation of the competing remedies and cost comparison; and Gary R. Hecox, containment hydrogeology, ground water remediation methods, and the United States’ proposed excavation system. At the suggestion of the Court and by agreement of the parties, the HSC presented, by designated deposition, the testimony of Dr. Allyn M. Davis, hazardous waste management director, Region VII, concerning the United States’ remedy, and tasks left to HSC by the Consent Decree.

D.

Exhibits

The Court received the following United States exhibits in support of the Consent Decree: United States’ Consent Decree Exhibit Numbers 2, 19, 71, 73, 75, 81, 84, 87, 159, 160, 176, 186, 187, 326, 356, 369, 395, and 397. The Court also received the following HSC exhibits: 6-17, 21, 30D, 32, 47, 84-99, 106, 109-134, 137-145, 165, 167, 168A, and 169.

E.

Contentions of the Parties

The United States urges the Court to approve the Consent Decree. The government advocates that the decree is lawful and fully consistent with Congress’ intent to expedite effective remedial actions through settlement, and therefore is in the public interest. The United States argues the contribution provisions of the Consent Decree are appropriate and that the agreement encompassing resolution of liability

*1493

of the federal agency waste generators is permitted. The United States contends that the Consent Decree meets the three-pronged test of

City of New York v. Exxon Corp.,

697 F.Supp. 677 (S.D.N.Y.1988).

Because the Consent Decree contemplates performance of remedial actions, the HSC requests a higher level of scrutiny by the Court than is called for under the

Exxon

test. However, applying even the less-stringent

Exxon

test, the HSC contends that the Court must reject the decree as neither fair and reasonable nor consistent with CERCLA. The HSC argues that the United States’ self-settlement gives favorable treatment to the federal agencies. The HSC further contends that the settlement would unfairly shift excessive risks and costs to HSC. The HSC urges rejection because the settlement would contain unlawful terms (contribution provisions that would attempt to extinguish the HSC’s claim for already-incurred response costs), and because the record is inadequate for approval.

F.

Additional Findings of Fact

— Con

sent Decree

1. This Court scheduled opening statements for the Remedy Phase trial for November 24,1989, and the commencement of evidentiary presentations for November 27, 1989. Scheduling Order at 10.

2. On November 21, 1989, the United States lodged with this Court the Consent Decree.

3. The United States, including the EPA and certain federal entities, and the settling defendants entered into the Consent Decree. Consent Decree sec. II, at 4-5.

4. By the provisions of the Consent Decree, eight defendants and six federal entities agreed to perform certain elements of the United States’ desired remedy for the Hardage Site. Consent Decree sec. VI. 1, at 10.

5. The corporate Settling Defendants included: Cato Oil and Grease Co., Downtown Airpark, Inc., Kerr-McGee Corp. and Kerr-McGee Refining Corp., L & S Bearing Co., Rotex Corp., United States Pollution Control, Inc., the Glidden Co., and the Sherwin Williams Co. Consent Decree sec. H.3., at 5-7.

6. A subset of these settling defendants, known as the Vapor Extraction Group, agreed to design and implement at its own expense a drum excavation plan, the removal of free liquids and drums containing liquids from the main pit, and the installation of a soil vapor extraction system in the source areas. Consent Decree sec. IV. 16, at 8; Consent Decree sec. VII, at 12-14.

7. The following corporations constituted the Vapor Extraction Group: Cato Oil & Grease Co.; Downtown Airpark, Inc.; Kerr-McGee Corp.; Kerr-McGee Refining Corp.; L & S Bearing Co.; Rotex Corp.; and USPCI. Consent Decree sec. IV.14, at 8.

8. Six federal entities consented to the Consent Decree: (1) United States Air Force; (2) United States Army; (3) United States Department of Energy; (4) United States Department of Justice; (5) United States Department of Transportation; and (6) United States Veterans Administration. Consent Decree sec. II.2, at 4-5.

9. These federal entities agreed to fund the following work under the Consent Decree: (a) operation of the soil vapor extraction system to be installed by the Vapor Extraction Group, until appropriate cleanup criteria were attained; '(b) repair and maintenance, including regular inspection, of the soil vapor extraction and associated air treatment system; and (c) transfer of condensed vapors collected in the soil vapor extraction system to a central staging area at the Hardage Site. Consent Decree sec. VII.2, at 14-15.

10. Two settling defendants, Glidden and Sherwin Williams, agreed to pay to the Hazardous Substance Superfund the following amounts in response costs associated with the Hardage Site: Glidden — $341,-484.00; Sherwin-Williams — $481,140.00. Consent Decree sec. XVIII.1, at 36.

11. The Consent Decree provided for only a partial remedial action. Consent Decree at 1. The remedial work under the Consent Decree would cover 35% of the comprehensive remedy solution for the

*1494

Hardage Site. I at 27. Additional remedial components are needed to implement a comprehensive remedy at the Hardage Site. Consent Decree sec. V, at 9.

12. The Consent Decree contemplated that the work of the Vapor Extraction Group would include “transfer of liquids and drums containing liquids from the excavation areas to a central staging area on the Site, to be constructed and maintained by other parties, for disposal by those other parties.” Consent Decree sec. VILl.d, at 13. The other parties to whom the liquids would be delivered included the HSC and other nonsettling defendants. I at 27; II at 268-69, 271-72; III at 507-08, 512, 676.

13. In addition, the federal entities agreed to fund work including “the transfer of condensed vapors collected in the soil vapor extraction system to a central staging area on the site, to be conducted and maintained by other parties, for disposal by those other parties.” Consent Decree sec. VII.2, at 15.

14. The United States provided no explanation of the extent of liquids, drums, and condensed vapors, of which the HSC and the other nonsettling defendants would be required to dispose. DE 169 at 89-92.

15. The Consent Decree work plan provided no solution regarding what the HSC was to do with nonpourable liquids. Ill at 677.

16. The HSC projected the added cost to the HSC for handling these transferred vapors, liquids, and drums to be $120 million. Ill at 679, 682.

See

III at 494-99, 509-10.

17. The HSC defendants strongly opposed the approval of the Consent Decree. Brief of Hardage Steering Committee Defendants in Opposition to Proposed Carve-Out Settlement (filed Nov. 22, 1989) (filing No. 2232); Brief of Hardage Steering Committee Defendants in Opposition to Approval of Consent Decree for Partial Settlement (filed Nov. 29, 1989) (filing No. 2268).

18. The HSC defendants strongly opposed the need for source excavation and soil vapor extraction at the Hardage Site.

See supra

Section VIII.

19. The HSC proposed a comprehensive alternative containment remedy for the Hardage Site. I at 51; DE 16. The State of Oklahoma prefers the remedy proposed by the HSC. DE 169 at 26.

20. The State of Oklahoma supported some form of vapor extraction for the Hardage Site. Ill at 591, 615, 616.

21. However, the OSDH expressed concerns about the safety of excavation at the Hardage Site. Coleman Aff. at B-4; III at 588. These public health concerns included: the likelihood of barrel deterioration, exposure of chemicals to air during excavation, and the proposed excavation process itself. Ill at 588-89, 632; DE 169 at 24. In addition, the Department of Health anticipated the incompatibility of the wastes excavated and the possibility of fires during excavation. Ill at 590.

22. Based upon these concerns, the OSDH opposed approval of the portion of the Consent Decree concerning excavation of the barrel mound and main pit. Ill at 588; DE 169 at 18.

23. The United States’ excavation expert, Mr. Brack, acknowledged that detailed work plans for protection of workers during excavation have not yet been developed. V at 1114-18.

24. Implementation of excavation at the Hardage Site will result in significant risks to local residents as well as to workers who excavate the site. Ill at 640, 642, 648-49.

25. The Court is not convinced that excavation of the barrel mound and certain portions of the main pit to remove buried drums and free-phase liquids can be implemented safely by minimizing or eliminating the risks of injury to workers.

26. The United States wholly failed to present sufficient evidence to convince the Court that excavation was an appropriate remedy for the Hardage Site.

See supra

Section VII.

27. The lodging of the Consent Decree just three days before the scheduled commencement of the Remedy Phase trial in no way reduced the complexity, length, or expense of this litigation.

*1495

28. The Consent Decree defined “Covered Matters” as:

any and all civil liability for reimbursement of response costs or for injunctive relief pursuant to sections 106 and 107 of CERCLA or section 7003 of RCRA with regard to the Site, including, without limitation, all claims asserted by the United States in the Complaint filed in this action and all claims, including claims for reimbursement of costs, asserted by any other party with respect to actions a) taken after the filing of the Complaint in this action, and b) responding to or addressing matters raised in the Complaint.

Consent Decree sec. XXVI.2, at 46.

29. This provision of the Consent Decree cuts off response costs incurred by private parties following the date of the filing of the Complaint, June 26, 1986. Consent Decree sec. XXVI.2.; I at 40-41.

30. The CERCLA provides the United States with no authority to settle private party response cost claims. 42 U.S.C. § 9607 (a)(4)(B) (Supp. V 1987). The Court articulated this opinion during the September 22, 1989, hearing on the Consent Decree for

De Minimis

Settlement. Transcript of Hearing on Motion for Entry of Consent Decree for

De Minimis

Settlement at 70-71 (Sept. 22, 1988).

G.

Conclusions of Law

— Consent

Decree

1. The technical proposal provided by the United States for excavation of the Hardage Site in support of the excavation portion of the Consent Decree is inadequate to protect the public interest.

Seymour Recycling,

554 F.Supp. at 1339 .

2. The United States failed to prove that excavation under the Consent Decree protects public health and the environment.

Hooker Chems. & Plastics,

540 F.Supp. at 1073 .

3. Should the case law be interpreted to impose on the HSC defendants the burden of demonstrating that entry of the Consent Decree is improper, the HSC defendants have met that burden.

United States v. Akzo Coatings of America, Inc.,

719 F.Supp. 571 (E.D.Mich.1989).

4. The Consent Decree is not reasonable when viewed under the factors in

Seymour Recycling.

5. The CERCLA provides the United States with no authority to settle private party response costs. 42 U.S.C. § 9607 (a)(4)(B) (Supp. V 1987).

6. Approval of the Consent Decree is not in the public interest.

Exxon,

697 F.Supp. at 692 .

7. The Court finds the Consent Decree should not be approved and the United States’ Motion for Entry of the Consent Decree should be DENIED.

X. GOVERNMENT RESPONSE COSTS

A.

Introduction

On September 11, 1989, the United States filed a motion seeking partial summary judgment against the defendants. The motion sought a determination of the defendants’ liability under section 107(a)(4)(A) of CERCLA, 42 U.S.C. § 9607 (a)(4)(A) (Supp. V 1987), for response costs incurred by the United States in conjunction with the Hardage Site. The United States requested $6,292,065.25 in response costs. In addition, the United States requested a declaration of liability for future response costs. In order to allow for final trial preparation, the Court notified the parties on November 15, 1989, of its preliminary ruling on the United States’ motion for partial summary judgment on response costs. On December 8, 1989, this Court granted the United States’ motion for partial summary judgment as to $5,441,201.25 in response costs, but denied on summary judgment the request for DOJ indirect costs in the amount of $850,864. Order Granting Plaintiffs Motion for Partial Summary Judgment on Response Cost Issues (Dec. 8, 1989) (filing No. 2286). In addition, the Court granted the United States’ motion for declaratory judgment for liability for future response costs, except DOJ indirect costs.

Id.

at 32 .

At the trial of this matter the United States requested: additional DOJ direct labor costs for fiscal 1989 of $93,934; other DOJ direct costs for fiscal 1989 of $831,-

*1496

750; DOJ indirect costs of $1,042,489; EPA indirect costs of $473,756.50; and prejudgment interest in the amount of $737,-723.41.

33

B.Stipulations

On November 21, 1989, the parties provided the Court with a written stipulation in this matter. The Court adopts as part of its findings and conclusions the following portions of the stipulation relating to the United States’ response costs. The United States’ response cost portion of the stipulation reads:

114. The Government’s DOJ and EPA cost summaries submitted in support of the motion for partial summary judgment on response cost issue identify invoices which are described on their faces as invoices for Hardage site work. The Government has paid these invoices. The summaries also identify additional invoices which are not described on their faces as specific to the Hardage site. The Government also has paid these invoices.

115. The Government has paid various of its employees the amounts shown on the summaries submitted in support of the motion for partial summary judgment on response cost issue for hours which employees charged on their time sheets to the Hardage case.

116. The Defendants do not dispute that the Government has paid various of its employees the amounts shown on the EPA cost summary attached to the declaration of Nellie Boone and the DOJ cost summary attached to the declaration of Patrick A. McGeehin submitted in support of the motion for partial summary judgment on response costs issues.

117. The indirect cost rates computed by EPA for EPA Region VI were $66 per hour in fiscal year 1983, $60 per hour in fiscal year 1984, $54 per hour in fiscal year 1985, $53 per hour in fiscal year 1986, $52 per hour in fiscal year 1987. The provisional rates for fiscal years 1988 and 1989 are: $52 per hour in fiscal year 1988, and $52 per hour in fiscal year 1989.

118. The number of site-specific hours billed to the Hardage site by EPA Region VI personnel in program divisions in the years 1983 through December 31, 1989 were: 1983, 587; 1984, 409; 1985, 1,105.5; 1986, 1,727.5; 1987, 1,817; 1988, 2468; 1989, 700.

Supplemental Joint Statement of Uncontested Facts at 36-37.

C.

Witnesses

Six witnesses appeared on behalf of the United States, by affidavit and through testimony, concerning the United States’ response cost issues. The witnesses and their topics included: William Cooke and Joseph Menchaca, EPA indirect costs; Patrick A. McGeehin, DOJ direct and indirect costs and prejudgment interest; Thaddeus L. Juszczak, Jr., EPA Office of Solid Waste and Emergency Response (“OSWER”); Benjamin Burrell, DOJ rent charges; and Manfred van der Walde, the General Services Administration (“GSA”) Rent System through which federal agencies are charged for space costs and related services. Thomas A. Matunas appeared on behalf of the HSC defendants.

D.

Exhibits

The following exhibits were received into evidence at the trial relating to the United States’ response cost issues: Government

*1497

Exhibit Numbers 239-44, 246-49, 251-52, 253-57; HSC Exhibit Numbers 115,146-53.

E.

Contentions of the Parties

The United States contends that it is entitled to recover its response costs expended in conjunction with the Hardage Site and this case under section 107(a)(4)(A) of CERCLA, over and above the costs awarded by the Court in its December 8, 1989, Order Granting Plaintiffs Motion for Partial Summary Judgment on Response Cost Issues, except DOJ Indirect Costs. The costs the United States seeks include DOJ direct costs for payroll and other direct costs of litigation support, court reporter fees, and expert witness fees. In addition, the United States argues that it is entitled to recover both EPA and DOJ indirect costs for activities necessary to support response efforts at the Hardage Site, under methodologies that are fair and reasonable. Finally, the United States requests an award of prejudgment interest.

The HSC responds that the United States is not entitled to recover its indirect costs because of flaws in the United States’ cost accounting system and methodology. The HSC’s arguments include: (1) indirect costs are not response costs as defined by CERC-LA; (2) the United States failed to satisfy the requirements of section 104(c)(1) of CERCLA in order to spend more than $2 million from the Superfund; (3) the United States’ proposed remedies were inconsistent with the National Contingency Plan (“NCP”), therefore costs associated therewith are ineligible for reimbursement; and (4) the allocated indirect costs are inconsistent with the NCP and are not in accordance with generally accepted accounting principles. The HSC contends the inconsistent costs include: on-going costs of government, rent charges, indirect costs incurred when no field work was performed, lack of full capacity, and costs limited by inter-agency agreements. In addition, the HSC argues that the United States’ expenditures are unreasonable, unjustified, excessive, unnecessary, and thus not recoverable under CERCLA, and also that they are unconstitutional. Finally, the HSC contends the United States is improperly seeking an award of prejudgment interest.

F.

Legal Discussion

— United

States’ Response Costs

1. Authority for Awarding Response Costs ■

Section 107(a) of CERCLA imposes liability on four categories of persons — including owners and operators of vessels or facilities, owners and operators of disposal sites, generators, and transporters — for costs including:

all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan....

CERCLA § 107(a)(4)(A); 42 U.S.C. § 9607 (a)(4)(A) (Supp. V 1987). This section authorizes “the government to recover

all

costs of its removal or remedial [response] actions.”

United States v. R.W. Meyer, Inc.,

889 F.2d 1497, 1504 (6th Cir.1989) (emphasis in original) (footnote omitted).

Crucial terms within this cost provision have been broadly defined elsewhere in CERCLA. The terms “remove” or “removal” are defined as follows:

The terms “remove” or “removal” means [sic] the cleanup or removal of released hazardous substances from the environment, such actions as may be necessary [sic] taken in the event of the threat of release of hazardous substances into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damages to the public health or welfare or to the environment, which may otherwise result from a release or threat of release. The term includes, in addition, without being limited to ... action taken under section 9604(b) of this title....

42 U.S.C. § 9601 (23) (Supp. V 1987) (footnote omitted). The section 9604(b)-autho-rized action, referenced in the above-listed definition of “remove,” includes:

such planning, legal, fiscal, economic, engineering, architectural, and other stud

*1498

ies or investigations as [the President] may deem necessary or appropriate to plan and direct response actions, to recover the costs thereof, and to enforce the provisions of this chapter.

42 U.S.C. § 9604 (b)(1) (Supp. V 1987).

The CERCLA goes on to define “remedy” or “remedial action”, in pertinent part, as follows:

The terms “remedy” or “remedial action” means [sic] those actions consistent with permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment. ... The term includes, but is not limited to, such actions at the location of the release ... any monitoring reasonably required to assure that such actions protect the public health and welfare and the environment.

42 U.S.C. § 9601 (24) (Supp. V 1987) (footnote omitted).

Finally, as currently defined by CERC-LA, “respond” or “response” means “remove, removal, remedy, and remedial action, all such terms (including the terms ‘removal’ and ‘remedial action’) include enforcement activities related thereto.” 42 U.S.C. § 9601 (25).

In

United States v. Northeastern Pharmaceutical & Chem. Co.,

579 F.Supp. 823 (W.D.Mo.1984),

aff'd in part and rev’d in part on other grounds,

810 F.2d 726 (8th Cir.1986),

cert. denied,

484 U.S. 848 , 108 S.Ct. 146 , 98 L.Ed.2d 102 (1987), the district court interpreted the government’s response costs to include:

(a) Investigations, monitoring and testing to identify the extent of danger to the public health or welfare or the environment.

(b) Investigations, monitoring and testing to identify the extent of the release or threatened release of hazardous substances.

(c) Planning and implementation of a response action.

(d) Recovery of the costs associated with the above actions, and to enforce the provisions of CERCLA, including the costs incurred for the staffs of the EPA and the Department of Justice.

Id.

at 850.

Federal courts have held that the United States is entitled to recover its investigative costs from parties liable under section 107(a).

See New York v. General Elec. Co.,

592 F.Supp. 291, 298 (N.D.N.Y.1984) (“initial response costs ... are clearly authorized as costs of response under section 101(23), 42 U.S.C. § 9601 (23).”);

United States v. Wade,

577 F.Supp. 1326 , 1333 n. 4 (E.D.Pa.1983) (cost of “investigating, monitoring, testing, and evaluating the situation at the Wade site ... is recoverable as a cost of removal.”);

United States v. Conservation Chem. Co.,

619 F.Supp. 162, 186 (W.D.Mo.1985) (government response costs include investigations, monitoring, and testing).

Courts have also held that section 104(b) entitles the United States to recover its litigation costs from liable parties.

Northeastern Pharmaceutical & Chem. Co.,

579 F.Supp. at 851 (“the Court finds that under CERCLA, the defendants are jointly and severally liable for, and the plaintiff is entitled to recover, all litigation costs, including attorney fees, incurred by plaintiff.”);

United States v. South Carolina Recycling & Disposal, Inc.,

653 F.Supp. 984, 1009 (D.S.C.1984) (holding the United States can recover litigation expenses),

aff'd in part

and

vacated in part

in

United States v. Monsanto Co.,

858 F.2d 160 (4th Cir.1988),

cert. denied,

— U.S. -, 109 S.Ct. 3156 , 104 L.Ed.2d 1019 ;

Conservation Chem. Co.,

619 F.Supp. at 186 (following

Northeastern Pharmaceutical & Chem. Co.).

Courts have emphasized that liability extends to

all

response costs.

United States v. R.W. Meyer, Inc.,

889 F.2d 1497 (6th Cir.1989). These costs also include enforcement costs and administrative expenses.

South Carolina Recycling & Disposal,

653 F.Supp. at 1009 . In addition, the United States has also been awarded indirect costs.

R.W. Meyer,

889 F.2d at 1504 . To the extent response or remedial actions are necessary, section 107(a)(4)(A):

*1499

contemplates that those responsible for hazardous waste at each site must bear the

full

cost of cleanup actions and that those costs necessarily include both direct costs and a proportionate share of indirect costs attributable to each site. In essence then, the allocation of the indirect costs to specific cleanup sites effectively renders those costs direct costs attributable to a particular site.

Id.

at 1504 (emphasis in original).

Section 107(a)(4)(A) refers to “all costs of removal or remedial action” without specifying the source of the expenditures of the United States. 42 U.S.C. § 9607 (a)(4)(A) (Supp. V 1987).

2. Burden of Proof on Response Costs

As stated above, pursuant to section 107(a)(4)(A) of CERCLA, defendants found liable must pay

“all

costs of removal or remedial actions incurred by the United States Government ... not inconsistent with the national contingency plan.” 42 U.S.C. § 9607 (a)(4)(A) (emphasis added). The NCP, 40 C.F.R. § 300-300.71 , was promulgated pursuant to section 105 of CERCLA, 42 U.S.C. § 9605 . The NCP is the EPA regulation that establishes procedures for selection of response actions. “As long as the actions taken by the government were in harmony with the [NCP], the costs incurred pursuant to those actions are presumed to be reasonable and therefore recoverable.”

Northeastern Pharmaceutical & Chem. Co.,

579 F.Supp. at 851 .

Once the United States has proven that it incurred response costs, the defendants bear the burden of proving that the response costs sought by the United States are inconsistent with the NCP.

Northeastern Pharmaceutical & Chem. Co.,

810 F.2d at 747 .

3. Prejudgment Interest

Prejudgment interest was recoverable even before the 1986 amendments to CERCLA, the Superfund Amendments and Reauthorization Act of 1986 (“SARA”) (signed into law on October 17, 1986).

Northeastern Pharmaceutical & Chem. Co.,

579 F.Supp. at 852 . The SARA amendments to section 107(a) of CERCLA provide that “[t]he amounts recoverable in an action under this section shall include interest on the amounts recoverable.... Such interest shall accrue from the later of (i) the date payment of a specified amount is demanded in writing, or (ii) the date of the expenditure concerned.” 42 U.S.C. § 9607 (a) (Supp. V 1987). Interest rates are the rates of interest on investments of the Hazardous Substance Superfund.

Id.

Prejudgment interest is awarded on amounts incurred prior to SARA.

United States v. Northernaire Plating Co.,

685 F.Supp. 1410, 1421 ,

aff'd sub. nom. United States v. R.W. Meyer, Inc.,

889 F.2d 1497 (6th Cir.1989).

G.

General Findings of Fact on United States’ Response Costs

1. In responding to the release or threatened release of hazardous substances in and around the Hardage Site, the EPA and the Department of Justice Land and Natural Resources Division (“LNRD”) incurred both direct and indirect costs. GE 247 at 3; McGeehin Aff. at 3.

2. The direct costs of the EPA included salary expenses of EPA regional and headquarters employees who worked on Hard-age Site response actions, travel, and costs for other services provided by private vendors associated with the work at the Hard-age Site. GE 247. In addition, various EPA contractors provided a variety of investigative, enforcement, and remedial activities at the Hardage Site including site sampling, hydrogeologic studies, aerial photography, and others. GE 247.

3. The LNRD also incurred direct costs in the prosecution of the

Hardage

case. These costs included “salary expenses for time charged to the Hardage case by LNRD attorneys and paralegals” and “other costs charged directly to the Hardage case,” such as “travel expenses, court reporter fees, and litigation support” expenses. McGeehin Aff. at 3.

4. In addition, both the EPA and the DOJ incurred indirect costs in conjunction with the work performed at the Hardage Site. Indirect costs are costs that are necessary to support response efforts at spe

*1500

cific sites, but which cannot be directly identified with a specific site. Menchaca Aff. at 2. The DOJ indirect costs are the type of costs necessary “to support the functioning of LNRD attorneys and paralegals in their performance on individual cases, but which are not charged directly to individual cases.” McGeehin Aff. at 5.

5. These indirect DOJ costs “include, but are not limited to, indirect labor (e.g., attorney and paralegal administrative time, secretarial support, accounting support, record keeping and time keeping), compensated absences, (e.g., vacation, holiday, and sick time), fringe benefits, office space and utilities, supplies, and training.” McGeehin Aff. at 5.

6. The EPA also incurred similar indirect costs, including agency “personnel and program overhead costs such as employee supervision and fringe benefits, program management, administrative support, rent, utilities, telephone, and other indirect costs.” GE 247 at 3.

7. The purpose of an indirect cost determination is to determine the total cost for the work performed by the EPA and the DOJ at a Superfund site, in this case the Hardage Site. VII at 1385; Menchaca Aff. at 3.

8. Methodologies developed by the EPA and the LNRD are used to allocate these indirect costs to specific sites, based on criteria detailed in the affidavits and testimony of William Cooke, Joseph Menchaca, and Patrick A. McGeehin.

H.

Additional Findings of Fact

— DOJ

Direct Costs

1. The LNRD incurred costs in prosecuting eases under CERCLA. McGeehin Aff. at 1-2. These costs included salary expenses, other direct costs, such as travel expenses, court reporter fees, and litigation support.

Id.

at 3.

2. The LNRD attorneys and paralegals identify their time spent on case and non-case activities. McGeehin Aff. at 2.

3. Under a contract with the DOJ, the accounting firm of Rubino & McGeehin accumulated the costs incurred by the LNRD identified with specific cases. McGeehin Aff. at 1-2.

4. Rubino & McGeehin prepared a summary of the costs incurred by the LNRD in the prosecution of the

Hardage

case for fiscal years 1987 and 1988 and the first two quarters of fiscal year 1989. McGeehin Aff. at 3 & Attachments 1-4.

5. The summary reflects that DOJ direct labor costs incurred at the Hardage Site during the first two quarters of 1989 totaled $93,934. McGeehin Aff. Attachment 1.

6. The summary also includes other direct costs incurred by the LNRD in private vendor costs for the first two quarters of 1989 in the amount of $831,750. McGeehin Aff. Attachment 4. These costs included expert witness fees, court reporter fees, litigation support, microfilming, and travel.

Id.

7. The HSC objected to the summary because it had not had an opportunity to review this documentation.

8. However, the Court's Order Granting Plaintiffs Motion for Partial Summary Judgment on Response Cost Issues (Dec. 8, 1989) (docket sheet No. 2286), granted the United States a declaratory judgment for all future response costs. Therefore, if the United States presents proof that these costs were incurred, it is entitled to recover these costs.

9. The United States incurred costs of at least $93,934 in DOJ payroll expenses in the prosecution of the

Hardage

case during the first two quarters of fiscal year 1989. McGeehin Aff. Attachment 1.

10. In addition, the United States incurred other direct costs of at least $831,-750 in the prosecution of the

Hardage

case during the first two quarters of fiscal year 1989. McGeehin Aff. Attachment 4.

I.

Conclusions of Law

— DOJ

Direct Costs

1. The United States met its burden of proving that it incurred DOJ direct payroll costs in the prosecution of the

Hardage

case during the first two quarters of fiscal year 1989.

2. The DOJ direct payroll costs in the amount of $93,934 are response costs that

*1501

the United States is entitled to recover from the defendants herein.

3. The United States also met its burden of proving that it incurred other direct costs of the DOJ in the prosecution of the

Hardage

case during the first two quarters of fiscal year 1989.

4. The DOJ’s other direct costs in the amount of $831,750 are response costs that the United States is entitled to recover from the defendants herein.

5. These direct costs are response costs that the United States is entitled to recover from the defendants. 42 U.S.C. § 9607 (a)(4)(A).

J.

Additional Findings of Fact

— DOJ

Indirect Costs

1. The purpose of the LNRD is to prosecute and defend cases. McGeehin Aff. at 5.

2. The indirect costs of the LNRD are “incurred to support the functioning of LNRD attorneys and paralegals in their performance on individual cases, but which are not charged directly to individual cases.” McGeehin Aff. at 5.

3. A list of the types of costs included in DOJ indirect costs is found in Finding of Fact No. 5 in Section X(G) of this Order.

4. The accounting firm of Rubino & McGeehin contracted to compute the indirect costs of Superfund cases for the LNRD from fiscal year 1987 to the present, under a system designed by Rubino & McGeehin. McGeehin Aff. at 5; VI at 1320.

5. The LNRD “system of allocating indirect costs treats all non-case specific costs [of the LNRD] as indirect costs allo-cable to cases.” McGeehin Aff. at 5.

6. The LNRD indirect cost allocation system allocates indirect costs to specific cases through use of indirect cost rates for specific fiscal years. McGeehin Aff. at 5.

7. The LNRD indirect cost rates are calculated by dividing total LNRD indirect costs for a fiscal year (total payments less direct case specific costs) by total LNRD direct labor costs for that fiscal year

(i.e.,

attorney and paralegal direct labor costs) to produce an indirect cost rate for that year. McGeehin Aff. at 5; VI at 1320.

8. Rubino & McGeehin “removed from the indirect cost rate certain costs relating solely to non-Superfund activities, such as costs for which the DOJ is reimbursed by agencies other than EPA.” McGeehin Reb. Decl. at 3.

9. Through the application of the indirect cost rate, only a fraction of LNRD indirect costs is allocated to CERCLA cases. For fiscal year 1987, 73.37% of the total indirect cost was allocated to non-CERCLA cases. Similarly, in fiscal year 1988, 70.92% of the total LNRD indirect cost was allocated to non-CERCLA cases. McGeehin Aff. at 6.

10. “[Ijnteragency agreements between EPA and DOJ dated March 5, 1987 and August 20, 1987 ... provide for reimbursement of indirect costs allocable to Superfund cases, including the Hardage case.” McGeehin R.Decl. at 6.

11. The HSC argued the ratio of indirect to direct costs for DOJ was too high when compared to the private sector. Ma-tunas Decl. at D-ll.

12. However, the direct labor hourly rate for LNRD attorneys for fiscal years 1987 and 1988 for the

Hardage

case was $19.38. McGeehin Aff. Attachment 5. Were LNRD attorneys to receive higher salaries, the ratio of indirect to direct costs would fall. VI at 1328.

13. The “fully loaded” rates for DOJ attorneys and paralegals working on the

Hardage

case (“direct labor plus all indirect costs allocated to the case”) of $59.99 for attorneys and $41.98 for paralegals are reasonable in comparison to the private sector. McGeehin R.Decl. at 2.

14. Matunas’ recalculated DOJ indirect cost in Opinion No. 3 of his affidavit did not include office space, postage for correspondence related to the Hardage Site, telephone charges made by DOJ attorneys prosecuting the case, and equipment rental utilized by DOJ attorneys prosecuting the case. McGeehin R.Decl. at 3.

15. General government expenses as defined by OMB Cir. A-87 are excluded

*1502

from DOJ indirect costs allocated to Superfund cases, including

Hardage.

McGeehin R.Decl. at 4.

16. Fixed costs as well as variable costs can be allocated as indirect costs. McGeeh-in R.Decl. at 4.

17. The DOJ audit reports “took no exception to the indirect cost rate methodology” developed by Rubino & McGeehin. McGeehin R.Decl. at 5.

18. The LNRD indirect cost allocation system is based on generally accepted accounting principles. McGeehin R.Decl. at 5.

19. The methodology used to calculate DOJ indirect costs is fair and equitable.

20. The DOJ indirect costs claimed for the

Hardage

case, as reflected in the cost summary included in Attachments 1 through 5 to McGeehin’s Affidavit, were computed through application of the indirect cost rates for fiscal years 1987, 1988, and 1989. McGeehin Aff. at 3.

21. Thus, the total LNRD indirect costs incurred in the

Hardage

case through fiscal year 1989 are $1,042,489. McGeehin Aff. Attachment 1.

K.

Conclusions of Law

— DOJ

Indirect Costs

1. The United States met its burden of proving that it incurred the DOJ indirect costs in conjunction with the

Hardage

case. The HSC defendants failed to prove that these DOJ indirect costs are inconsistent with the National Contingency Plan.

2. The indirect costs incurred by the United States in prosecuting the

Hardage

case, as identified in paragraph 21 above in the amount of $1,042,489, are response costs that the United States is entitled to recover from the defendants herein. 42 U.S.C. § 9607 (a)(4)(A) (Supp. V 1987);

R.W. Meyer,

889 F.2d at 1504 .

L.

Additional Findings of Fact

— EPA

Indirect Costs

1. In 1983, the certified public accounting firm of Ernst & Whinney contracted with the EPA to, among other things, develop a “methodology for calculating the indirect cost of work performed by the EPA under the Superfund program.” Menchaca Aff. at 1.

2. In preparing the indirect cost methodology, Ernst & Whinney considered certain Office of Management and Budget Circulars including A-87, “Cost Principles for State and Local Governments”, and A-21, “Cost Principles for Educational Institutions”. Menchaca Aff. at 2; GE 240. In addition, the methodology was designed to comply with standards issued by the Cost Accounting Standards Board. Menchaca Aff. at 2.

3. The indirect cost methodology developed by Ernst & Whinney for the EPA was described in a report prepared and transmitted to the EPA by letter dated August 26, 1983. GE 241; Menchaca Aff. at 1.

4. The Ernst & Whinney Superfund cost allocation process involved:

(a) Identifying the final cost objective— in this case, work performed by the EPA at a Superfund site. Menchaca Aff. at 3.

(b) Identifying direct costs associated with remedial and response activities at a Superfund site, such as labor costs of EPA personnel working directly on the site.

Id.

(c) Identifying “other organizational units that support the people or the process” of remedial or response activities at the site.. An example is the EPA payroll department, which processes information to pay personnel working on the site.

Id.

(d) Identifying costs associated with these support services and determining an appropriate basis on which to equitably allocate these costs to the people and processes they support.

Id.

(e) Determining a way to allocate these costs to the various Superfund sites on which the personnel worked.

Id.

at 4.

5. The EPA implemented the methodology developed by Ernst & Whinney to calculate and allocate the indirect costs of work performed by the EPA at Superfund sites. Cooke Aff. at 2.

6. In implementing the Ernst & Whin-ney indirect cost methodology, the EPA identified each organization within the EPA that provided support to the Superfund program. Cooke Aff. at 8.

*1503

7. One such organization was the Office of Solid Waste and Emergency Response in the EPA headquarters office, which provides technical assistance, administrative support, and policy guidance. Juszczak Decl. at 1-8.

8. The EPA then gathered financial information from the EPA’s Financial Management System concerning each support organization. Cooke Aff. at 9.

9. The EPA used an allocation statistic to distribute the indirect costs of each organizational unit to Superfund and non-Superfund activities. Generally, this statistic was based on the number of persons employed in each “benefitted” office. Cooke at 9.

10. In allocating indirect costs, the EPA followed a three-step process:

(a) In stage one, the EPA determined, for each fiscal year, the total amount of EPA administrative support costs for EPA headquarters and the 10 regional EPA offices that support CERCLA response actions. The EPA allocated part of the headquarters administrative support costs to each of its 10 regional offices. Cooke Aff. at 11. These costs were then added to each regional office’s administrative costs that support such action.

(b) In stage two, the EPA distributed regional administrative costs to the regional program offices and also distributed stage one costs to regional program offices. Cooke Aff. at 11-12.

(c) In stage three, EPA determined all of the costs of the Superfund program. The EPA then distributed these costs to the site and nonsite activities of the regional Superfund program personnel.

Id.

at 12.

11. The EPA then calculated an indirect cost rate for each region for each fiscal year by dividing the region’s total site costs as determined by the process described above, by the total number of hours billed by the regional Superfund personnel in a given fiscal year. Cooke Aff. at 13. The indirect cost rates were expressed as dollar amounts to facilitate application of these rates.

12. Because the purpose of the Superfund is to clean up the nation’s hazardous waste sites, generally accepted accounting principles would have permitted the United States to allocate all of the costs of the Superfund program to sites. Cooke Aff. at 13; VI at 1306.

13. The EPA’s indirect cost allocation is conservative because many costs that could have been allocated to sites have been excluded. For instance, capital equipment usage is not allocated to sites, the EPA excludes costs for the EPA Office of Research and Development’s (“ORD”) work on Superfund issues, the EPA excludes non-site-specific costs associated with contractors’ site work, and the EPA’s allocation transfer payments to other federal agencies for Superfund response efforts are excluded. Cooke Aff. at 15-16.

14. OMB Circular A-87 permits the allocation of grantee departmental indirect costs. Menchaca R.Aff. at 2. By analogy, the inclusion of the cost of the Office of the Administrator of the EPA as an allocable indirect cost is consistent with OMB Circular A-87.

Id.

This inclusion does not represent “ ‘general costs of government’ within the meaning of OMB Circular A-87."

Id.

at 2-3.

15. Fixed costs as well as variable costs can be allocated as indirect costs. Mencha-ea R.Aff. at 4.

16. The methodology employed to calculate EPA indirect costs allocates to specific sites less than 35% of the indirect costs of the Superfund program. Cooke Aff. at 17.

17. The EPA indirect cost allocation system is based on generally accepted accounting principles. Menchaca Aff. at 2.

18. The methodology used to calculate EPA indirect costs is fair and equitable. Menchaca Aff. at 2; Cooke Aff. at 6,14-15.

19. The indirect cost rates computed by the EPA for EPA Region VI were $66 per hour in fiscal year 1983, $60 per hour in fiscal year 1984, $54 per hour in fiscal year 1985, $53 per hour in fiscal year 1986, and $52 per hour in fiscal year 1987. The provisional rates for fiscal years 1988 and 1989 were $52 per hour in fiscal year 1988, and $52 per hour in fiscal year 1989. Sup

*1504

plemental Joint Statement of Uncontested Facts para. 117, at 37.

20. The number of site-specific hours billed to the Hardage Site by EPA Region VI personnel in program divisions in the fiscal years 1983 through 1988 were: 1983 —587; 1984 — 409; 1985 — 1,105.5; 1986— 1,727.5; 1987 — 1,817; 1988 — 2,468; 1989— 700. Supplemental Joint Statement of Uncontested Facts para. 118, at 37.

21. The EPA’s indirect costs are calculated by multiplying the number of site-specific hours billed by EPA Region VI personnel in program divisions for that year (Fact No. 20) by the indirect cost rate for that year (Fact No. 19).

22. Thus, the total of EPA indirect costs incurred on the Hardage Site through fiscal year 1988 was $473,756.50.

M.

Conclusions of Law

— EPA

Indirect Costs

1. The United States met its burden of proving that it incurred these EPA indirect costs. The HSC defendants failed to prove these EPA indirect costs are inconsistent with the National Contingency Plan.

2. The indirect costs incurred by the United States in performing removal and remedial actions at the Hardage Site, as identified at paragraph 22 above in the amount of $473,756.50, are response costs that the United States is entitled to recover from the defendants herein.

See

42 U.S.C. § 9607 (a)(4)(A) (Supp. V 1987);

R.W. Meyer,

889 F.2d at 1504 .

N.

Additional Findings of Fact

— Rent

Charges (“SLUC”)

1. The General Services Administration (“GSA”) administers the real property activities of the United States government through its Management Division of the Public Buildings Service. Van der Walde Aff. at 2. The real property is either owned or leased by the United States.

2. The GSA funds its real property management activities through user charges to “customer” federal agencies, including the DOJ and the EPA, which occupy GSA-controlled space. Van der Walde Aff. at 3.

3. Congress authorized the GSA to collect user charges through the Public Buildings Amendments of 1972 ( Public Law 92-313 ). Van der Walde Aff. at 3.

4. Until 1987, the system used to fix these user charges was called Standard Level User Charges (“SLUC”). With the beginning of fiscal year 1987, the Rent System replaced SLUC. Van der Walde Aff. at 3.

5. Rent System rates are based on five-year cycles. Prior to each cycle, the GSA establishes a base rate for each type of space available in GSA buildings. Van der Walde Aff. at 3. Rates based upon appraisals by professional real estate appraisers are developed for each building. Appraisers compare a GSA building to similar buildings nearby to determine the price “a private landlord would charge a private tenant for GSA space.”

Id.

6. The GSA provides its tenants with services including janitorial services, utilities, maintenance, and security. The cost of these services is included in the Rent System. Van der Walde Aff. at 3-4.

7. The GSA rent rates also vary according to the specific finish of the space (e.g., office space, automated data processing space, storage space). Burrell Decl. at 3.

8. The GSA adjusts the rent rates annually to reflect inflation at the building location, as measured by the Consumer Price Index (“CPI”), and changes in operating costs. Van der Walde Aff. at 4.

9. Before implementation, proposed rent rates are subject to review and approval by the Office of Management and Budget. Van der Walde Aff. at 4.

10. All federal agencies are charged rent for all buildings pursuant to the Rent System. Van der Walde Aff. at 6.

11. Rent paid to the GSA by customer federal agencies pays the capital and operating expenses of the GSA’s real property management activities. Van der Walde Aff. at 3.

12. Rent charged to agencies for buildings owned or leased by the United States is established under the above-described appraisal system and represents actual costs

*1505

to the agencies, including EPA and DOJ. Van der Walde Aff. at 6; Burrell Decl. at 4.

13. For facilities within the DOJ that are located outside the National Capital Region (“NCR”), the actual rent charged by the GSA is passed on through the Justice Management Division directly to the DOJ division that occupies the space. Bur-rell Decl. at 3.

14. The Justice Management Division establishes a DOJ rate for each type of space occupied by a DOJ division such as the LNRD. The DOJ base average rate is determined by totaling the GSA rent charge for each type of space occupied in the NCR and dividing that number by the total number of square feet of the type of space occupied. Burrell Decl. at 3.

15. The final DOJ rate is calculated by adding to the average office space rent charge certain projected DOJ facilities costs, which DOJ is responsible for paying, such as overtime heating, ventilation and air conditioning, overtime guard service, parking, and building maintenance; these are charges that exceed the GSA standard rent charges. Burrell Decl. at 3.

16. Rent and utility costs for space occupied by the EPA and the DOJ personnel who worked on the Hardage Site are “indirect costs.”

17. The space occupied by the DOJ and the EPA was necessary for all of the work these employees did concerning the Hard-age Site.

18. These space costs attributable to the work performed by EPA and DOJ employees concerning the Hardage Site have been allocated through EPA and DOJ indirect cost methodologies. Burrell Decl. at

4.

0.

Conclusions of Law

— Rent

Charges (“SLUC”)

1.The rent component of DOJ and EPA indirect costs is a recoverable cost under section 107(a)(4)(A). 42 U.S.C. § 9607 (a)(4)(A) (Supp. V 1987);

R.W. Meyer,

889 F.2d at 1504 . These indirect costs are attributable to response efforts, because they represent a portion of overhead expenses needed to support EPA and DOJ direct response activities at the Hardage Site.

R.W. Meyer,

889 F.2d at 1504 .

P.

Additional Findings of Fact

— Pre

judgment Interest

1. The United States filed the Complaint in this action on June 25, 1986. The Complaint requested payment of a specified amount and stated that the United States had incurred, as of the date of the Complaint, “in excess of $1.4 million” in response costs.

Id.

para. 2, at 2.

2. Since the date of the filing of the Complaint, prejudgment interest has accrued on the costs incurred by the United States in taking removal and remedial actions in response to conditions at the Hard-age Site.

3. Rubino & McGeehin, a certified public accounting firm, calculated prejudgment interest based on the following procedures, bases, and assumptions. For EPA costs:

1. Costs were summarized by the month and fiscal year in which they were incurred based on information provided in the EPA cost summary, dated May 5, 1989 and which is an exhibit to the accompanying Affidavit of Nellie Boone.

2. Costs identified in the EPA summary as incurred in a particular month were assumed to be incurred on the fifteenth (15th) of the month and as a result fifteen (15) days of interest were accrued on those costs for that month, except for those incurred prior to and during June 1986 which accrued five (5) days of interest for June 1986.

3. Interest has been compounded on an annual basis.

4. For purposes of the computation, the cumulative balance is treated as accruing 30 days of interest in each month.

5. The interest rates used are the rates earned by the Hazardous Substance Trust Fund as provided to us by EPA.

6. Interest has been computed from June 25, 1986 through May 31, 1989.

McGeehin S.Decl. at 2-3.

Certain costs listed in the EPA summary were not included in the prejudgment inter

*1506

est calculation as listed in McGeehin’s Supplemental Declaration at page 3. The total of the costs excluded from the EPA prejudgment interest calculation were $793,-976.48. McGeehin S.Decl. at 3. Additional costs totaling $317,672.64 were excluded per the government’s July 3,1990, and July 25, 1990, filings.

For DOJ costs:

1. Costs were summarized by quarter for fiscal years 1987, 1988 and 1989.

2. For fiscal years 1987, 1988 and 1989 costs were assumed to be incurred at the midpoint of the quarter for which they were summarized.

3. Interest has been compounded on an annual basis.

4. Costs identified or assumed as incurred in a particular month were assumed to be incurred on the fifteenth (15th) of the month and as a result fifteen (15) days of interest was accrued on those costs for that month.

5. For purposes of the computation, the cumulative balance is treated as accruing 30 days of interest in each month.

6. The interest rates used are the rates earned by the Hazardous Substance Trust Fund as discussed in the preceding paragraphs.

7. Interest has been computed from the date the costs were incurred through May 31, 1989.

McGeehin S.Decl. at 3-4.

4. The total accrued interest, according to the revised schedule of prejudgment interest for EPA costs, is $469,825.23. McGeehin S.Decl. at 3 (as revised by July 3, 1990, and July 25, 1990, filings).

5. The total accrued interest, according to the revised schedule of prejudgment interest for DOJ costs, is $267,898.18. McGeehin S.Decl. at 4.

6. The prejudgment interest that has accrued on the costs incurred by the United States for response activities at the Hard-age Site, calculated in accordance with the methodology described in the Supplemental Affidavit of Patrick A. McGeehin, is at least $737,723.41. The Court approves this methodology.

Q.

Conclusions of Law

— Prejudgment

Interest

1. The United States has met its burden of proving that it is entitled to prejudgment interest.

2. The United States is entitled to recover prejudgment interest accruing from June 25, 1986, the date of the Complaint, in the amounts of $469,825.23 on EPA costs, and $267,898.18 on DOJ costs, for a total of at least $737,723.41. 42 U.S.C. § 9607 (a) (Supp. V 1987).

R.

Conclusion

For the reasons set forth above, the United States is awarded its response costs incurred in conjunction with the Hardage Site and this case in the following amounts: the DOJ direct

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