Opinion

City of Wichita, Kansas v. Trustees of APCO Oil Corp. Liquidating Trust

306 F. Supp. 2d 1040
58 ERC (BNA) 1364
2003 U.S. Dist. LEXIS 24812
2003 WL 23315705

Court: District Court, D. Kansas
Filed: Dec 31, 2003
Status: Published
Author: Belot
On the bench: Belot
Cited by: 22 cases
Authority: More cited than 69.1%

city’s cleanup was. “remedial in nature” under CERCLA where “[t]he court has heard no evidence that the contamination at the Site posed a threat to human health or the environment which required an immediate response”

How later courts described this case

city’s cleanup was. “remedial in nature” under CERCLA where “[t]he court has heard no evidence that the contamination at the Site posed a threat to human health or the environment which required an immediate response”
entering declaratory judgment as to liability for future costs of groundwater remediation, to be allocated on the same basis as past costs
the district court found that a state agency’s “charges” [for government oversight were] necessary costs of the response at the Site and were fully recoverable
"Bestfoods rejected authority to control as a basis for operator liability. Instead, an operator must be actively involved in decisions regarding disposal of hazardous substances or environmental compliance.” (citation to Bestfoods omitted)

Written by the judges who cited it.

The opinion

MEMORANDUM DECISION

BELOT, District Judge.

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TABLE OF CONTENTS

I. INTRODUCTION.1045

II. SUMMARY OF THE DISPUTE . 1046

III. CERCLA LIABILITY. 1048

A. Covered Person Under CERCLA.-..1052

B. Release of any Hazardous Substance.'..1056

1. APCO.1057

2. Reid Supply Company. 1069

3. Land Tool Company. 1075

4. Tri-Supply..'.1076

C. The Releases Caused Plaintiff to Incur Costs..1076

D. Response Action Compliance with the NCP .'.1076

1. The NCP. 1077

2. General Description of City’s Response Action.:..1078

3. Standard of Review for KDHE Determinations...1081

4. Presumption of NCP Compliance. 1082

5. Defendants’ Contentions.'.1084

6. Conclusion.:.1090

E. Necessity of Response Costs.1090

1. CDM Costs.1092

2. KDHE Costs.'...,.1093

3. Miscellaneous Vendor Costs.'.'.1094

4. Stinson, Mag & Fizzell Costs.......1095

5. City Payroll Costs . 1095

6. Motor Pool Expenses. 1096

7. Summary of Recoverable Costs.•... '._1096

F. Arguments Raised in Defense...1096

IV. ALLOCATION OF RESPONSE COSTS.1097

A. Equitable Factors..'.’.1098

1. Gore Factors.‘.'.1098

2. Other Equitable Factors.-..1101

3. Conclusions Regarding Equitable Factors. 1105

B. Methods for Allocating Response Costs.1106

1. Motion to Strike Testimony of Michael Smith...'... 1107

2. ALT’s Modeling and Allocation ..:.1110

3. Reid’s Allocation. 1113

4. Tri-Supply’s Allocation.1114

5. Land Tool Company’s Allocation.1115

C. Prejudgment Interest....1115

D. Declaratory Judgment. 1117

V. REID’S MOTION TO RECONSIDER. 1118

VI.CONCLUSION....1120

APPENDICES . 1120

I. INTRODUCTION

Plaintiff City of Wichita (City) brings this private party action against (1) the Trustees of the APCO Oil Corporation Liquidating Trust (ALT); (2) Reid Supply Company, Inc., Charles P. Trombold, David G. Trombold and Walter S. Trom-bold; (3) Land Tool Company and E'H. Land; and (4) Tri-Supply Company, 'Inc., and Gordon Kratz, pursuant to the Comprehensive Environmental Response, Corn-pensation and Liability Act (CERCLA), 42 U.S.C. § 9601

et seq.,

as amended by the Superfund Amendments and Reauthoriza

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tion Act of 1986 (SARA), Pub.L. No. 99-499, 100 Stat. 1613 (1986). The City seeks to recover past response costs from defendants, in the form of contribution pursuant to CERCLA § 113(f). 42 U.S.C. § 9613 (f)- The City also seeks declaratory relief that two of the defendants, ALT and Reid Supply, are responsible for future response costs, pursuant to CERCLA § 113(g)(2). 42 U.S.C. § 9613 (g)(2).

At the outset, it is important to comment on the size and complexity of this case and on the level of professionalism of counsel and their support staff. This Memorandum Decision represents the culmination of countless hours and resources expended by each of the parties involved in preparing for and litigating the case, and by the court in attempting to decide the many factual and legal issues. The initial complaint was filed on October 7,1998, and was the first of over 1,440 documents filed in the case. Numerous pretrial rulings were made, either by the magistrate judge or by this court.

The trial itself included 8 weeks of testimony concerning CERC-LA’s various complexities and the technical issues related to the parties’ potential liability, and an on-site visit during which the court and counsel viewed first-hand the geographic area at issue. The parties provided the court with an array of computer monitors in the courtroom which allowed the court, counsel, and all 38 witnesses immediate access to the hundreds of exhibits presented during the trial. Technicians were present throughout the trial to operate the computer equipment and were very efficient in doing so. The trial ultimately resulted in a transcript exceeding 5,000 pages. All counsel conveyed a level of preparation and skill in their representation that surpassed the court’s expectations in light of the difficult nature of the subject matter. The court sincerely appreciates the efforts made by all those involved in resolving this case.

In reaching its decision, the court has thoroughly considered the record in its entirety, including the voluminous trial transcript, the post-trial briefing and the court’s own assessments of witness credibility. For the reasons stated, the court rules that ALT, Reid Supply Company, Land Tool Company, Walter Trombold, and E.H. Land are liable for past response costs, but only for amounts proportional to the groundwater contamination caused by the respective business entities. The court furthermore declares that ALT and Reid Supply are liable for future groundwater remediation costs in proportion to their individual contributions to the groundwater contamination at the site. Finally, the court declares that ALT and Reid will be liable for any future source control measures at the former APCO and Reid Supply facilities, respectively.

II. SUMMARY OF THE DISPUTE

In 1986, the Kansas Department of Health and Environment (KDHE), an administrative agency of the State of Kansas, collected groundwater samples at multiple locations within the Gilbert and Mosley Site (the Site) and discovered high levels of chlorinated volatile organic compounds, also known as chlorinated solvents. Chlorinated solvents do not occur naturally either in soil or groundwater. They include the commercially-available products Tetrachloroethene or Perchloroethylene (PCE) and Trichloroethene (TCE), and their degraded products, Dichloroethene (DCE) and Vinyl Chloride (VC), neither of which is commercially available. The Site, located near the center of Wichita, Kansas, is named after the intersection of Gilbert Street and Mosley Street, which lies near the middle of the contaminated area. The

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boundaries of the Site have been delineated through a series of investigations conducted by the KDHE and others since 1986. The Site encompasses an area of roughly four and a half miles from north to south and one to two miles from east to west. It covers approximately 3,850 acres of both residential and commercial property. The Site includes about 8,000 separate parcels of land, and the City itself owns hundreds of parcels within the Site. The groundwater at the Site generally flows in a southerly direction, although it can shift to the south/southwest or the south/southeast in certain locations. The chlorinated solvents moving within the flow of groundwater have created “plumes” of contamination, designated plumes A-F. The plumes lie beneath approximately 1,800 acres of land and contain over 2.75 billion gallons of ground water.

See

App. C-l. The principal contamination plumes involved in this case are A, B, and E.

Following the discovery, the KDHE entered into a Multi-Site Cooperative Agreement with the EPA (EPA/KDHE multi-site agreement), which required investigations pursuant to CERCLA and the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), to determine whether the Site, along with other areas, qualified for the EPA’s National Priorities List (NPL).

The City became aware of the groundwater contamination upon completion by the KDHE of a Listing Site Investigation in August 1990 and it subsequently entered into an agreement with the KDHE in March 1991 to address the resulting threat to public health and the environment and to avert further economic problems. The agreement was entitled “Settlement Agreement for [RI/FS], and for Certain Remedial Actions to be Determined Following Public Involvement” (City/KDHE agreement). Around that time, the City retained the environmental consulting firm of Camp, Dresser & McKee (CDM) to assist with the project. Following completion of the RI/FS, the KDHE issued its final Corrective Action Decision (CAD) for Interim Groundwater Remediation, in which the KDHE identified the pump and treat system as the preferred remedial alternative for groundwater remediation at the Site.

The pump and treat system was being installed at the time of trial.

A. Description of Defendants

APCO Oil Corporation (APCO) was a public corporation organized and existing under the laws of the state of Delaware. APCO owned a facility located at 1001 East Lincoln in Wichita until 1971. The East Lincoln location is within the Site. APCO was completely dissolved in 1978 and its assets and liabilities were transferred to ALT, a court created and supervised trust organized and existing under the laws of Delaware, pursuant to an order of the Delaware Court of Chancery. ALT claimed prior to trial that it could not be sued, pursuant to the Chancery Court’s order, that it had no capacity to be sued,

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pursuant to Rule 17(b), and that it consequently could not be held liable for any judgement against APCO.

See

Fed. R.Civ.P. 17(b) (“The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized.”). The court ruled in its December 22, 2000, Memorandum and Order that the City’s case against ALT is not barred by the Chancery Court’s order establishing the trust and transferring to it “all funds, assets, properties and claims ... to provide for any other legitimate claims asserted against such liquidating trust,” that CERCLA preempts Fed.R.Civ.P. 17(b), and that in any event, ALT has the capacity to be sued under Rule 17(b).

ALT filed a motion to reconsider, which the court denied. ALT again raises Rule 17(b) in defense. ALT has not presented any new persuasive arguments or authority and the court again adheres to its initial ruling. ALT has the capacity to be sued under Rule 17(b) and is therefore liable for any and all judgments against APCO stemming from the present dispute.

Reid Supply was a Kansas corporation engaged in the business of selling and distributing chemicals. Reid Supply owned a facility located at 911 E. Indianapolis from 1975 to 1988. Walter Trom-bold was the sole stockholder and president of Reid Supply during most of the years that it was in business. Two of his sons, David and Charles Trombold, were also involved in the business. Charles began working in the business in 1978 as a corporate officer and director. He became more active in Reid’s operation in the early 1980s and eventually took over for his father as president in 1986. David came to the business in 1981 and held various offices. Reid was dissolved in 1988.

Land Tool Company operated a helmet manufacturing business at 650 E. Gilbert Street from 1975 to 1988, at which it handled, stored and used chlorinated solvents, including TCE. E.H. Land owned and operated the company during that time period.

Tri-Supply operated a dry cleaning supply facility at 330 S. Commerce, from approximately June 1, 1993, to November 80, 1996, at which it received PCE in bulk and delivered it to Wichita-area customers. Gordon Kratz resided in Illinois and was the president and majority stockholder of Tri-Supply Inc.

III. CERCLA LIABILITY

Congress enacted CERCLA in the wake of the Love Canal hazardous waste disaster, to establish “ ‘a comprehensive response and financing mechanism to abate and control the vast problems associated with abandoned and inactive hazardous waste disposal sites.’ ”

Morrison Enter, v. McShares, Inc.,

302 F.3d 1127, 1132 (10th Cir.2002) (quoting

Pub. Serv. Co. of Colo. v. Gates Rubber Co.,

175 F.3d 1177, 1181 (10th Cir.1999)). As amended by SARA in 1986, CERCLA authorizes two types of actions through which a party may recoup costs incurred in hazardous waste cleanup: cost recovery actions under § 107(a) and contribution actions under § 113(f)-

See

42 U.S.C. §§ 9607 (a), 9613(f);

United States v. Colo. & E. R.R.,

50 F.3d 1530 , 1535 (10th Cir.1995).

Section 113(f) incorporates the liability provisions of § 107(a). Therefore, an understanding of the interrelationship between the two sections is helpful. Section 107 imposes liability on four classes of potentially responsible parties (PRPs), including current and former owners of facilities involved in hazardous waste disposal.

Tosco Corp. v. Koch Indus.,

216 F.3d 886 , 891 (10th Cir.2000). Liability under § 107 is strict, joint, and several. Thus, under § 107, once liability is demonstrated, a PRP may be held liable for the entire cost of cleanup, even if multiple PRPs are in

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volved.

See Colo. & E. R.R.,

50 F.3d at 1535 (“CERCLA, as originally enacted, left a PRP faced with the prospect of being singled out as the defendant in a cost recovery action without any apparent means of fairly apportioning CERCLA costs awarded against it to other PRPs.”). Section 113 supplements § 107 by providing a contribution mechanism for a party saddled with more than its proportionate share of response costs. Thus, an individual PRP which has been left with the entire cleanup cost under § 107, or which voluntarily undertakes it, may seek contribution from and attempt to apportion liability to other PRPs under § 113(f).

See Morrison,

302 F.3d at 1133 . Unlike § 107, however, § 113 is governed by equitable apportionment principles rather than the confines of joint and several liability.

A prima facie showing under § 113 is simply a determination that the defendant PRP would otherwise be held jointly and severally liable under § 107(a).

See County Line Inv. Co. v. Tinney,

933 F.2d 1508, 1516 (10th Cir.1991);

Farmland Indus. v. Colo. & E. R.R.,

922 F.Supp. 437, 440 (D.Colo.1996). In order to make the required showing, a § 113 plaintiff must establish (1) that defendant is a “covered person” under CERCLA; (2) that a release of any hazardous substance at the site in question has occurred; (3) that the release caused plaintiff to incur costs; (4) that plaintiffs response action or cleanup was consistent with the NCP; and (5) that plaintiffs costs are “necessary” costs of response.

See

42 U.S.C. §§ 9607 (a), 9613(f);

Morrison,

302 F.3d at 1135-36 . CERCLA liability may be inferred from the totality of the circumstances and need not be proved by direct evidence.

Tosco,

216 F.3d at 892.

Because § 107 imposes strict liability upon PRPs regardless of fault, causation is not part of the liability inquiry under § 113.

See id.

at 891 (“To establish liability under § 9613(f), it is sufficient for the plaintiff to establish a connection between a particular defendant and the incurred response costs vis-a-vis the defendant’s identification as a responsible person as defined in § 9607(a).”);

Control Data Corp. v. S.C.S.C. Corp.,

53 F.3d 930 , 935 & n. 8 (8th Cir.1995);

Gen. Elec. Co. v. Litton Indus. Automation Sys.,

920 F.2d 1415, 1417-18 (8th Cir.1990) (stating that courts look only to see if there has been a release or threatened release for which a defendant is responsible);

City of Tulsa v. Tyson Foods,

258 F.Supp.2d 1263, 1280 (N.D.Okla.2003) (“CERCLA does not impose a causation requirement as a predicate to liability when a defendant falls into one of the classes of liable parties”);

Farmland Indus.,

922 F.Supp. at 440 (“Neither § 9613(f) nor the Tenth Circuit’s opinion in

U.S. v. Colorado & Eastern Railroad Co.,

50 F.3d 1530 (10th Cir.1995), require that such causation be proven to establish liability under CERCLA’s contribution provision.”). In other words, a plaintiff in a § 113 case involving multiple PRPs need not prove a specific causal link between the costs incurred and an individual PRP’s waste.

See Tosco,

216 F.3d at 891 (citing

United States v. Alcan Aluminum Corp.,

964 F.2d 252, 264-66 (3d Cir.1992)). Rather, § 113(f) only requires a plaintiff to prove liability or potential liability under § 107(a) and the plaintiffs incurrence of response costs.

See Farmland Indus.,

922 F.Supp. at 440 ;

La.-Pac. Corp. v. Beazer Materials & Servs.,

811 F.Supp. 1421, 1426-30 (E.D.Cal.1993) (statute does not impose a causation element where defendant falls within one of four statutorily defined classes and there has been an actual release). An assessment of liability in this case therefore requires the City to prove each of the five prima facie elements of a § 113 action for each defen

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dant upon which the City seeks to place liability.

The court has previously concluded that the City’s action will proceed solely as a contribution action under § 113(f) and adheres to that conclusion here.

See City of Wichita v. Aero Holdings, Inc.,

177 F.Supp.2d 1153, 1169-73 (D.Kan.2000) (“The court concludes the City is a PRP pursuant to § 107(a)(1) based on its present ownership of a portion of the Coleman B property and the Bus Barn property and that the City is not entitled to maintain its § 107(a) action despite the ‘unique’ nature of this case.”). The City claims that, despite the court’s prior ruling, it is now entitled to maintain a cost recovery action under CERCLA § 107 due to intervening changes in controlling law.

Subsequent to commencement of the present suit, Congress amended CERC-LA’s innocent landowner defense.

See

Small Business Relief and Brownfields Revitalization Act, Pub.L. 107-118, § 223 , 115 Stat. 2356 (2002). In. order to qualify as an innocent landowner, and thereby avoid liability under CERCLA § 107(b), the City must show that when it purchased the properties, it “did not know

and

had no reason to know” that chlorinated solvents had been disposed of on the land. 42 U.S.C. § 9601 (35)(A)(i) (emphasis added);

see also

S.Rep. No. 107-2 at 11-12. Unfortunately, the City cannot qualify as a bona fide prospective purchaser because the amendment made clear that this new defense would only apply for purchases that occurred after the changes were enacted. 42 U.S.C. § 9601 (40). In contrast to this new bona fide purchaser defense, neither the 2002 amendments nor the legislative history suggests that Congress intended to change the innocent landowner defense such that those who purchased with actual knowledge of contamination might avoid CERCLA liability. Indeed, although the City argues that its interpretation avoids creating some minor surplusage under section 35(B), the irony is that the City’s interpretation would render the entire bona fide purchaser defense as surplusage because all of the protections of that defense would be duplicated in the innocent landowner defense. The 2002 amendments clearly distinguish between the innocent landowner and the bona fide prospective purchaser, and this court must do the same.

Compare

Small Business Relief and Brownfields Revitalization Act § 222

with id.

§ 223. Since the City stipulated that it had actual knowledge of TCE contamination at the Bus Barn prior to purchasing the property, the City cannot maintain an innocent landowner defense. Accordingly, the City may not maintain a cost recovery action under CERCLA § 107(a); instead, the City may only bring a contribution action under CERCLA § 113(f).

A. Covered Person Under CERCLA

The City must initially establish, as part of its prima facie case of CERCLA liability pursuant to § 113, that each of the named defendants was a covered person under CERCLA.

See Morrison,

302 F.3d at 1135 . “Covered persons” include “any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of.” 42 U.S.C. § 9607 (a)(2). The term “facility” includes any building or structure, or “any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located.”

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42 U.S.C. § 9601 (9). CERCLA defines “disposal” indirectly in 42 U.S.C. § 9601 (29) by referencing the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. § 6901

et seq.

That Act defines “disposal” to mean “the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.” 42 U.S.C. § 6903 (3).

The court concludes that the City has met its burden on the “covered person” element of CERCLA liability with respect to APCO, Reid Supply, Tri-Supply, and Land Tool. APCO owned a facility, located at 1001 E. Lincoln, at which it received, stored, sold and distributed PCE and TCE from approximately 1967 to 1971. Reid Supply owned a warehouse, located at 911 E. Indianapolis, at which it received, stored and distributed PCE and TCE from approximately 1975 until at least 1978. Tri-Supply operated a dry cleaning supply facility at 330 S. Commerce, from approximately June 1, 1993, to November 30, 1996, at which it received at least eight bulk tank truck deliveries of PCE between June 1994, and June, 1995, totaling more than 8,100 gallons, filled and stored 55-gallon drums of PCE, and delivered PCE to Wichita-area customers. Finally, Land Tool operated a helmet manufacturing business at 650 E. Gilbert Street at which it handled, stored and used chlorinated solvents, including TCE.

The court also concludes that hazardous substances were disposed of, as defined in RCRA, at defendants’ respective facilities during each defendant’s tenure as owner or operator,

as more fully explained in section III.B.

See

42 U.S.C. § 6903 (3).

Besides the business entities from which the City seeks contribution, several individuals are also named as defendants. These include Gordon Kratz, E.H. Land, Walter Trombold, Charles Trombold, and David Trombold. The City seeks to impose liability on these men as operators of their facilities pursuant to CERCLA § 107(a)(2). 42 U.S.C. § 9607 (a)(2). This subsection imposes liability on both owners

and

operators of facilities when hazardous substances were disposed of during their tenure. Courts have lamented CERCLA’s unfortunate lack of clarity where it circularly defines an “operator” as one who “operates” a facility. 42 U.S.C. § 9601 (20)(A)(ii);

see United States v. Bestfoods,

524 U.S. 51, 66 , 118 S.Ct. 1876, 1887 , 141 L.Ed.2d 43 (1998);

United States v. Township of Brighton,

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153 F.3d 307, 313-14 (6th Cir.1998);

East Bay Mun. Utility Dist. v. U.S. Dep’t of Commerce,

142 F.3d 479 (D.C.Cir.1998);

Edward Hines Lumber Co. v. Vulcan Materials Co.,

861 F.2d 155, 156 (7th Cir.1988). Observing the effects of that lack of clarity, the Tenth Circuit noted that other circuits are. split on how to define “operator.”

FMC Corp. v. Aero Indus.,

998 F.2d 842 , 846 (10th Cir.1993). Some courts have imposed operator status on persons or entities with the “authority to control” operations at a facility, while others have required “actual control.”

See id.

Regrettably,

FMC

failed to adopt either test, finding instead that the defendant would be considered an operator regardless of which standard was used.

Id.

Bestfoods ,

the Supreme Court appeared to clarify the definition of “operator” under CERCLA, finding that “an operator must manage, direct, or conduct operations specifically related to pollution, that is, operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations.”

Bestfoods,

524 U.S. at 67 , 118 S.Ct. at 1887 . This definition clearly requires actual participation, not merely the potential to do so.

See Brighton,

153 F.3d at 314 (interpreting

Best-foods

as adopting the “actual control” test and rejecting the “authority to control” test). The court notes that in

Bestfoods ,

the alleged operator was a parent corporation whose subsidiary was the owner of the facility in question.

Bestfoods,

524 U.S. at 55 , 118 S.Ct. at 1881 . Similarly, in

Brighton,

the alleged operator was a municipality that exerted considerable influence over a privately owned dump site.

Brighton,

153 F.3d at 310-12 . Nonetheless, the rationale in those cases applies more broadly and, as here, makes just as much sense when applied to individuals.

1. The Trombolds

David and Charles Trombold began working at Reid Supply in 1981.

Although Charles was on the Reid board of directors and had held a position as a corporate officer since 1978, he was not actively involved in the day-to-day operations and decision-making until he began working at Reid in 1981. Even though the City was able to elicit a statement from Charles that he regularly participated in management meetings from the time he became an officer through the company’s dissolution in 1988, the court finds that Charles’ answer likely focused on the post-1981 period. Charles was simultaneously pursuing two degrees at the University of Kansas until 1980. Immediately thereafter, he studied chemistry at a university in England. Accordingly, he had little, if any, time to participate in the “actual control” of Reid Supply’s affairs to the point that he would be subject to operator liability under CERCLA. As for David Trom-bold, the City makes no allegations that he did anything to subject himself to operator liability before 1981. Thus, prior to 1981, neither David nor Charles held duties at Reid that would qualify them as operators.

See

42 U.S.C. § 9601 (20)(A)(ii);

Bestfoods,

524 U.S. at 67 , 118 S.Ct. at 1887 .

In order to be considered covered persons under the relevant CERCLA provisions, David and Charles would have to be considered operators during a time when chlorinated solvents were disposed of at 911 E. Indianapolis. As discussed in much more detail in Section III.B.2, the only releases that the City has proven at the

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Reid facility occurred primarily from 1975-78 and ceased not later than 1981. None occurred during the time David Trombold worked at Reid. Since any disposals at 911 E. Indianapolis occurred prior to the time that David and Charles Trombold could be considered operators, neither David nor Charles Trombold is a covered person under CERCLA § 107(a)(2). 42 U.S.C. § 9607 (a)(2).

Unlike his sons, Walter Trombold

was

involved with operations at the Reid facility during the period when bulk deliveries were made. Hence, his involvement in Reid’s affairs occurred during a time when PCE was disposed of at 911 E. Indianapolis. Thus, the real question for Walter is whether his activities made him an operator under CERCLA.

The City makes much of the fact that Walter was president of Reid Supply and owned most (and at times, all) of Reid’s outstanding stock. However, Walter’s titles and stock ownership suggest only some authority to control, not actual control.

Bestfoods

rejected authority to control as a basis for operator liability.

Bestfoods,

524 U.S. at 67 , 118 S.Ct. at 1887 . Instead, an operator must be actively involved in decisions regarding disposal of hazardous substances or environmental compliance.

See id.

Moreover, courts applying the actual control test have consistently required more than casual or occasional involvement in such decisions. Instead, an operator under CERCLA must make the relevant decisions on a frequent, typically day-to-day, basis.

See East Bay Mun. Util. Dist.,

142 F.3d at 485 (citing

United States v. Cordova Chem. Co. of Mich.,

113 F.3d 572, 579-81 (6th Cir.1997);

Redwing Carriers, Inc. v. Saraland Apartments,

94 F.3d 1489, 1504-05 (11th Cir.1996);

Schiavone v. Pearce,

79 F.3d 248, 253-54 (2d Cir.1996);

United States v. Gurley,

43 F.3d 1188, 1193 (8th Cir.1994);

John S. Boyd Co., Inc. v. Boston Gas Co.,

992 F.2d 401, 408 (1st Cir.1993);

Lansford-Coaldale Joint Water Auth. v. Tonolli Corp.,

4 F.3d 1209, 1220-22 (3rd Cir.1993);

Joslyn Manuf. Co. v. T.L. James & Co., Inc.,

893 F.2d 80, 83 (5th Cir.1990);

Hines Lumber Co.,

861 F.2d at 157-59 ).

As president of Reid Supply, Walter Trombold was two layers removed from the day-to-day supervision of operations at 911 E. Indianapolis. The evidence showed that Reid’s warehouse foreman was the person directly responsible for day-to-day operations at the 911 facility. For most of the period in which disposals occurred, that person was Jerry Letterman. The warehouse foreman reported to Reid’s general manager. The general manager was in charge of operations at all of the Reid facilities. During the relevant time frames, Gene Stamm was Reid’s general manager. Stamm reported to Walter Trombold. The evidence does not indicate that Walter Trombold ignored this organizational structure, nor that he otherwise engaged in activities that would rise to the level of control over PCE handling that would give him operator status. In other words, Walter Trombold’s connection with day-to-day operational decisions over PCE handling was too remote to establish operator liability. To rule otherwise would subject corporate officers to operator liability based on their mere authority to control, a standard rejected in

Bestfoods .

On the other hand,

Bestfoods

also imposes operator liability on those making decisions about compliance with environmental regulations.

Bestfoods,

524 U.S. at 67 , 118 S.Ct. at 1887 . Although Walter Trombold was not out on the warehouse floor telling employees how to fill barrels or how to clean up spills, the evidence shows that environmental compliance issues were addressed at weekly management meetings. Furthermore, Gene Stamm presented es

*1056

sentially uncontroverted testimony that Walter Trombold was present at those nieetings, and that no decisions were made at those meetings without Walter’s approval. Based on the frequency of those meetings, and the fact that Walter Trombold was actively involved in deciding matters of environmental compliance, the court finds that he was an operator. Accordingly, Walter Trombold is a covered person under CERCLA § 107(a)(2).

2. Gordon Kratz

Gordon Kratz was the president and majority stockholder of Tri-Supply during its tenancy at 330 S. Commerce. The City seeks to hold Kratz liable as an operator based on his activities associated with the 330 S. Commerce facility. Kratz lived in Illinois, and only visited the Wichita facility about once every eight or nine months, staying only a day for each visit. He entrusted the management and environmental compliance of the Wichita facility to his local office manager, Bob Raveill. The City claims Kratz is an operator because he established PCE handling procedures and enforced them at the TriSupply facility. On the contrary, Kratz’s involvement at the Wichita location was nowhere near the day-to-day management and control required of an operator under

Bestfoods .

Likewise, his so-called. procedures amounted to nothing more than guidance to limit the number of times drums were re-used for PCE storage. Beyond that, he merely admonished Raveill to follow the general safe-handling procedures supplied by the manufacturer, and to avoid any spills. Indeed, Kratz noted the peculiarity of the City’s position at trial when he said “You keep calling it my procedures; but I — I don’t know why.” Kratz’s general admonitions for safe handling hardly rise to the level of control that would give rise to operator liability, nor do they amount to the type of decisions that would impose liability for directing environmental compliance matters. Accordingly, Kratz is not an operator, and not a covered person under CERCLA § 107(a)(2).

3. E. H. Land

E. H. Land stipulated that he both owned and operatéd the Land Tool facility during the relevant time periods. Furthermore, the evidence clearly established that chlorinated solvents were disposed of at the Land Tool facility.

See infra,

section III.B.3. Accordingly, E. H. Land is a covered person under CERCLA § 107(a)(2).

B. Release of any Hazardous Substance

The City must next establish, as part of its prima facie case of CERCLA liability pursuant to § 113, the occurrence of a release at the defendants’ respective facilities.

See Morrison,

302 F.3d at 1133 . The term “release” means “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant).” 42 U.S.C. § 9601 (22)! The term “environment” includes any “surface water, ground water, drinking water supply, land surface or subsurface strata, or ambient air within the United States or under the jurisdiction of the United States.” 42 U.S.C. § 9601 (8). The City contends that a release of the chlorinated solvents PCE and/or TCE occurred at defendants’ respective facilities. To understand the discussion of evidence regarding releases, some background on the activity of chlorinated solvents in the environment is helpful.

Chlorinated solvents are hazardous substances.

See Bob’s Beverage, Inc. v. Acme,

*1057

Inc.,

264 F.3d 692 , 694 (6th Cir.2001). A spill of PCE or TCE which stays on a surface such as concrete tends to evaporate quickly. Once it reaches the soil, however, chlorinated solvents can stay in the soil for years, particularly if the soil is saturated. The contamination gradually moves or “leaches” into the groundwater and then moves along preferential flow paths to the bottom of the aquifer because PCE and TCE are heavier than water. Dechlorination occurs during that slow process. Chlorinated solvents dechlori-nate as the result of a chemical reaction which occurs when the chlorinated solvent loses a chlorine atom, which is then replaced with a hydrogen atom. The chlorinated solvents involved in this case lose one chlorine atom at each step of the dechlorination process: PCE (four chlorine atoms) dechlorinates to TCE (three chlorine atoms); TCE dechlorinates to DCE (two chlorine atoms); DCE dechlori-nates to VC (one chlorine atom) and VC ultimately dechlorinates to ethane, a gaseous hydrocarbon. The process is sequential and the steps are not skipped.

There was disagreement regarding whether dechlorination can occur in soil. Olsen, the City’s witness, testified that de-chlorination occurs only in groundwater, when carbon is available, and that it does not occur in soil. Eversman, Reid’s witness, testified on cross-examination by the City’s counsel that in the presence of a carbon source, PCE in the soil can degrade to daughter products, including DCE, by the time it enters the groundwater. The court accepts Eversman’s testimony on this point. There are places at the Site where PCE, TCE and DCE have been found in the soil at a single location, e.g., RSI-7. Coupled with evidence of a PCE spill at the location, the only reasonable explanation for the presence of TCE and DCE is dechlorination because it is undisputed that DCE exists only as the result of the dechlorination process.

While the dechlorination process is sequential, it is not inexorable. The presence of oxygen, nitrates, and ferric iron can affect dechlorination. For purposes of this case, however, carbon products and sulfates are the compounds of most concern. Carbon, which generally is found in the form of petroleum, can speed up the dechlorination process. The presence of sulfate, an inorganic compound, has the opposite effect; it can slow the process and even stop dechlorination from DCE to VC. Olsen explained that in the presence of a carbon source, PCE and TCE can degrade, but when the concentration of sulfate is “high enough,” dechlorination stops at DCE until the microorganisms which facilitate dechlorination can get rid of the sulfate. Once that happens, dechlo-rination can proceed to VC and beyond. Eversman agreed that sulfates can inhibit or retard the degradation process. An exhaustive (and exhausting) source of information regarding dechlorination at the Site can be found in exhibits P-2219A and P-2333. With this background in mind, the court will discuss the evidence of chlorinated solvent releases at each of defendants’ facilities. The trial testimony regarding releases consumed many days of testimony, was quite complex, and is difficult to summarize. In retrospect, it is tempting to simply find that releases occurred at each facility without discussing the details of the evidence. Because chlorinated solvents are not found naturally in soil or groundwater, and because they were found in both at each facility, the inevitable conclusion is that releases occurred. The court has resisted this temptation out of respect for the efforts of the parties and the inevitable likelihood of review.

1. APCO

From approximately 1967 to 1971, APCO received PCE and TCE by bulk

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transport truck. It stored, sold and distributed these chlorinated solvents at its 1001 E. Lincoln Property during that five-year period. APCO housed its “Chemicals and Solvents” and “Fuels” divisions in an office building located at the corner of Lincoln and Washington Streets. The chemicals and solvents group utilized a warehouse and loading dock, located just to the southeast of the office building, to store, ship, and receive product, including chlorinated solvents.

See

App. C-2.

APCO also utilized a fenced-in area, located directly to the east of the warehouse, to store empty 55-gallon drums. APCO stored anywhere from 50 to 60 drums in this area, known as the “pen,” including used drums that previously contained chlorinated solvents. APCO employees stacked used drums on their sides in the pen until they could be shipped to a drum-reconditioner for reworking. Some of the used drum heads were in “pretty bad shape” while others “weren’t quite so bad.” The pen also contained a 1,000 .gallon above-ground storage tank, filled • with PCE. Other than the “pen,” which was gravel, almost the entire surface area of the property at 1001 E. Lincoln was concrete.

When a chlorinated solvent was delivered to the facility, it was either “drummed” on the loading dock or pumped directly into the above ground storage tank in the pen. If the solvent was to be drummed, the transport driver “would head the tractor directly up toward the loading dock from the north,” and would connect a hose from the transport truck to a nozzle, which could be pointed directly into the drums on the dock. The drums were then filled, weighed, and moved to the back of the dock. Except for the type of nozzle used, the procedure for filling the above ground tank in the “pen” was basically the same. The transport driver would drive up from Lincoln Street into the same area, head the tractor to the east toward the alley, and connect a hose onto the fill pipe of the above ground tank.

At least two hose connections occurred every time a chlorinated solvent was delivered. First, the transport driver ran a hose from the discharge pipe on the bottom of the truck’s tank up to a pump located either on the side of the truck or on the tank itself. The driver then ran another hose from the pump to the fill pipe of the above ground tank or onto the dock so that solvent could be drummed.

APCO followed the same basic procedure when transferring chlorinated solvent out of its above-ground tank for delivery to outside customers. First, a hose was connected to the discharge pipe on the above-ground tank and then hooked to a portable pump. Another hose was then run from the portable pump into either drums or a tanker truck for filling.

Larry Richwine worked as a driver and warehouseman at APCO from 1966 to 1972 and was the only fact witness to have actually observed operations at the facility.

The court finds Richwine’s testimony as to APCO’s general operations and tanker-truck delivery procedures generally credible. On the other hand, his testimony as to spill location, frequency, clean-up procedure, and size was highly influenced by one of ALT’S counsel and largely lacking in credibility.

According to Richwine, spills of chlorinated solvents occurred as transport hoses were being disconnected at least 50% of the time chlorinated solvents were delivered, for a total of approximately 30 spills. The hoses were always disconnected-and

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the spills always oecurred-on concrete-covered property immediately north of the above-ground storage tank and immediately north of the loading dock. The spills varied from smaller to larger amounts, Larger spills were either wiped up with rags or absorbed with an absorbent material, while spills of a half-gallon or less were left to evaporate.

Shortly before trial, one of ALT’s counsel showed Richwine a photo purporting to depict the surface area that is covered when a half-gallon of liquid is spilled onto concrete.

Although Richwine testified about witnessing spills in excess of two to three gallons in his deposition,

he changed his trial testimony, based on the photo, to reflect that no more than a gallon or two of chlorinated solvent was ever spilled.

Although Richwine indicated prior to his deposition that solvent sometimes “spilled

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onto the gravel ground when transferring solvent from the above ground tank to drums for delivery,” Richwine insisted in his deposition and at trial that all spills occurred on concrete. The evidence of contamination in the pen area does not support his testimony.

The frequent changes and inconsistencies in Richwine’s testimony, and his general demeanor while testifying, made it apparent that he was prepared at trial to say anything he could to assist in ALT’s defense. Richwine lost what little credibility he had remaining when, at the beginning of his redirect examination, he looked directly at defense counsel, immediately before answering the question posed to him, as if seeking some form of direction.

Given his ever-evolving testimony and defense counsel’s obvious influence, it is reasonable to infer that Richwine personally observed spills larger and more frequent than those he testified about. The court has no doubt that frequent, sometimes significant spills occurred. The sheer volume of chlorinated solvent that was being stored, shipped, and received at APCO on a daily basis,, combined with APCO’s apparent failure to take spill precautions during solvent transfers, makes frequent spills quite likely.

The court concludes' that at least 30 spills of chlorinated solvents-and likely more-occurred at APCO between 1967 and 1971. Most spills occurred on the concrete-covered property between the office building and the loading dock/warehouse as transfer hoses were being disconnected. Due to the nature of APCO’s operations, spills and leaks of chlorinated solvents also occurred on the gravel surface area of the pen and the loading dock itself. Whether these spills occurred as a result of residual

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solvents leaking from the used drums in the pen, from PCE transfers involving the above ground tank, or from general operations on and around the loading dock, all had the potential to allow chlorinated solvents to seep directly through to the soil and, ultimately, to the groundwater.

ALT sought to deflect the damaging effects of Richwine’s testimony in two ways: first, it presented testimony by Steven L. McCabe to the effect that chlorinated solvents cannot pass through concrete into soil. Second, it vigorously challenged the validity of test data taken at the APCO site, which showed the presence of chlorinated solvents in soil and groundwater. McCabe’s opinions apply primarily to APCO and can be dealt with rather summarily. The arguments regarding test data have application throughout the Site, and require more extended discussion.

After a series of field observations, concrete core-sample collections, spill tests, crack evaluations, and mathematic computations, McCabe concluded that “the penetration of the CVOC product through the concrete is unlikely given the quality of the materials and the basic mechanisms that control the penetration of liquids through concrete.” The original concrete, however, no longer exists in the areas where Ri-ehwine testified that spills occurred. McCabe’s opinion therefore hinges upon the very large assumption that the concrete existing in the spill areas between 1967 and 1971 would have been similar, in all significant respects, to concrete of the same mid-1960’s vintage still existing on the property immediately north of the loading dock.

The court finds McCabe’s testimony highly speculative and largely contrived. As will be explained in greater detail, chlorinated solvents were detected in the soil, only two feet below the ground surface, immediately below where the original concrete existed, in an area where Richwine testified that spills occurred. McCabe could not offer-and the court cannot imagine-any other reasonable explanation for the presence of chlorinated solvents so near the ground surface in that area, except that they passed through the overlying concrete.

Indeed, it is the presence of chlorinated solvents in the soil that most clearly confirms, in the court’s view, that significant releases actually occurred at 1001 E. Lincoln. While plausible arguments have been made regarding the extent to which chlorinated solvents in the

groundwater

underneath 1001 are attributable to upgra-dient sources and about the legitimacy of on-site versus off-site data,

there is simply no getting around the presence of chlorinated solvents, at shallow depths, in the

soil.

Although the parties hotly contest the validity of the test data which showed the presence of chlorinated solvents in soil, the disputes center around the extent of the contamination, not the fact of contamination. It is agreed that chlorinated solvents do not occur naturally in soil and groundwater, and there is no credible evidence that they migrate through the soil from upgradient sources. Not even McCabe suggested that groundwater contaminated with chlorinated solvents from upgradient sources conveniently “wicked up” through 15 feet or more of soil to

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places where these contaminants had been spilled.

The presence of soil contamination is illustrated by soil samples taken at various locations on the APCO property designated APC-5, APC-9, and APC-9A.

APC-5 is located directly underneath the concrete covered area between APCO’s office building and its loading dock, the location where, according to Richwine, spills occurred.

On-site testing at APC-5 indicated high levels of PCE in the soil at concentrations of 1403 parts per billion (ppb) only two feet below ground. Although off-site testing of the same samples yielded dramatically lower results, the off-site lab result nonetheless confirmed the presence of PCE in the soil at concentrations of 58 ppb, only two feet below the surface.

Data from APC-9 and APC-9A also revealed the presence of PCE in the soil at shallow depths. APC-9 and APC-9A are located east of APCO’s warehouse, in the gravel area known as the “pen.” On-site PCE readings at APC-9 indicated the presence of PCE in the soil at concentrations of 13.4 ppb and 76 . ppb at depths of two and four feet, respectively. The off-site lab confirmed the presence of PCE, at 23 ppb, four feet below ground. Similar data from APC-9A indicated the presence of PCE at concentrations of 291 ppb (on-site) and 16 ppb (off-site) two feet below the surface.

Considering Richwine’s testimony together with the data collected from APC-5, APC-9 and APC-9A, the court finds overwhelming evidence that chlorinated solvent spills occurred at 1001' E. Lincoln and that at least some of those spills reached the soil. The question then becomes whether, and to what extent, 1001 E. Lincoln is a source of contamination to the groundwater. Resolution of this question requires a somewhat extended review of the evidence pertaining' to the taking and analysis of soil and groundwater samples at APCO and other locations at the Site.

In February 1998, CDM subcontracted with Environmental Priority Service (EPS) to perform soil, soil gas, and groundwater sampling at 100,1 E. Lincoln. Pat Martin is the owner of EPS. Martin had a lot of training and experience in the collection and analysis of samples. His job was to take soil and groundwater samples at locations selected by CDM. In March 1998, Martin and his crew collected soil and groundwater samples at 1001 E. Lincoln. Martin utilized an on-site laboratory consisting of a van fitted with a geoprobe and various other equipment for analyzing samples, such as a gas chromatograph. A geoprobe is a hollow tube which is driven through layers of soil and into groundwater. Geoprobing is a relatively quick and inexpensive way to preliminarily locate or screen for the presence of contaminants in soil and/or groundwater at various depths. The soil and/or groundwater samples are analyzed in either on- or off-site laborato

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ries, or both. The laboratory analysis generates test data which reveals concentrations of contaminants such as chlorinated solvents, petroleum and sulfates. The types and concentrations of contaminants, as well as them locations in the soil and groundwater, yield information which, in this case, provided grist for complex and vastly differing opinions regarding sources, concentrations, degradation, direction of movement, areal dispersion and other aspects of chlorinated solvent contamination in the soils and groundwater at the Site.

Martin employed a modified version of the EPA SW-846 Method 3810 to analyze soil samples on-site. Method 3810 is described as a “heated headspace method” because it requires the heating of a sample to release volatile compounds for analysis. It is a simple method that allows large numbers of samples to be screened in a relatively short period of time. Due to the variability of the method, however, it is recommended for use only as a screening procedure for other, more accurate and determinative methods.

All sampling conducted at 1001 E. Lincoln, including Martin’s use of the modified Method 3810, was to be performed according to a number of quality assurance and quality control (QA/QC) protocols referred to in the Plume B Workplan, the City/ KDHE Agreement,

and the 1995 Final Quality Assurance Project Plan for Prede-sign Data Acquisition and Bioremediation Pilot Demonstration (QAPP). Twenty seven borings were taken on and immediately adjacent to the APCO property and over 100 samples were collected. Of the locations sampled, the most notable contamination was detected at APC-3, APC-5, APC-7, APC-9, and groundwater sampling location 910.

The court was impressed with Martin’s forthright demeanor and finds that Martin knew what he was doing and did it properly. The court was not impressed with cross-examination whose apparent purpose was to demonstrate that Martin was un-knowledgeable and sloppy. Despite ALT’s criticisms of Martin’s work and the absence of “chain of custody” logs, the court finds that he sufficiently documented his analysis of samples at 1001 E. Lincoln. His field notations include the time of day for placing the sample in the laboratory instrument, the chromatogram readings, the sample identification number, the sample depth, the sample type, and the reported concentrations. Martin’s typed “field sheets and analytical reports” for APC series data points located on or near 1001 E. Lincoln were included in the City’s

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Data Quality Reports approved by the KDHE. The court finds Martin’s on-site data substantially complies with CERC-LA’s requirements and is reliable to assist in determining ALT’s (and Reid’s) liability.

In May 1998, the City retained David Hendron and his company, GeoSyntec Consultants, to assist in determining whether specific properties located within the Site were sources of groundwater contamination.

According to Hendron, groundwater flows across the Site generally in a north-to-south direction, with a downward gradient of about five feet per mile. In keeping with the known groundwater flow direction, Hendron generally compared shallow groundwater data from wells upgradient from the subject property with data from on-site wells and those immediately downgradient from the property. If lower concentrations of chlorinated solvents were discovered upgradient than were discovered on-site and immediately downgradient to a property that was known or suspected of having handled chlorinated solvents, Hendron generally deemed that property a source. Hendron focused upon shallow groundwater results because shallow groundwater is generally the first to be impacted. Once chlorinated solvents hit the shallow groundwater at a given location, they tend to sink, because of their density, and to diffuse out into plumes of contamination. Because the contamination generally moves slightly downward within a given plume as it migrates off site, a shallow depth of contamination indicates a likelihood that a nearby property is a source.

Hendron compared the data collected from upgradient wells 828-1A and 828-4A to downgradient samples collected from APC-5, APC-7, 828-8B, WM-1, WM-2, APC-9 and APC-9A. Data collected from the upgradient wells showed little or no chlorinated solvents, while data collected on site and immediately downgradient of the APCO property showed significantly higher chlorinated solvent concentrations in both the soil and groundwater. At APC-5, for example, PCE concentrations of 1,403 ppb were discovered in the soil at 2 feet below ground surface (bgs) near the southeast corner of the facility. Groundwater readings taken at monitoring well WM-1, just south of APCO’s property line, revealed concentrations of PCE in the shallow groundwater (18 feet bgs) at 1200 ppb, TCE at 7300 ppb, and eis-l-2-DCE at 17,000 ppb, respectively.

Additional geoprobe sampling was performed on the former APCO property in March 2000.

The samples were taken at

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location 910B, directly beneath the location of APCO’s loading dock. The geoprobe readings indicated the following contaminant levels in the shallow groundwater: 1800 ppb PCE, 1500 ppb TCE, 1600 ppb cis-l,2-DCE, and <500 ppb VC. After analyzing the geoprobe results, CDM installed a permanent monitoring well at 910B to monitor the remedial system. Like the geoprobe samples, the monitoring well indicated significant levels of chlorinated solvents in the groundwater at 910B. Shallow groundwater readings taken in May 2002 indicated the presence of not only PCE (1400 ppb), but also of TCE (1600 ppb), DCE (3800 ppb), and VC (130 ppb). Each of these readings dramatically exceeds the Alternate Cleanup Levels (ACLs) established by the KDHE.

Hendron asserted- and this court now agrees-that these sampling results, together with the results from APC-7, 828-8B, WM-2, APC-9 and APC-9A, indicate APCO is a source of chlorinated solvent contamination to the groundwater.

ALT mounted a vigorous defense to the City’s evidence regarding chlorinated solvent contamination at APCO. According to ALT, the on-site soil data taken at 1001 E. Lincoln is unreliable for both qualitative and quantitative purposes because Martin utilized the modified 3810 method without EPA or KDHE approval and did not perform the required QA/QC protocols and data validation tests required to ensure the reliability of the onsite soil data.

ALT points out that Method 3810 requires “[s]tandard quality assurance practices” to be used, including data validation tests on any samples taken such as matrix spikes, matrix spike duplicates, and surrogate spikes. ALT also asserts that Martin and members of his crew did not follow established QA/QC, chain of custody, and data validation procedures as required by Method 3810, the Settlement Agreement, and the QAPP. The court finds that any failure by Martin to perform analyses such as matrix spikes and matrix spike duplicates did not impair either Martin’s credibility or the weight of his testimony.

Even ALT’s own expert, Dr. Edward McBean, admitted that APCO is a source. ALT asserts nonetheless that its contribution of contamination to the groundwater is so insignificant that it does not exceed the ACLs. According to McBean, therefore, no significant clean-up is required.

McBean considered several factors in reaching his opinions, including solvent handling operations at APCO, the. presence of concrete at the facility, the soil and soil data, adjacent land uses, and the contribution of contamination from upgradient sources. McBean utilized ALOHA and EMSOFT modeling to demonstrate that only minute amounts- of contaminant could reach the soil through concrete. He concluded that a half-gallon spill onto concrete would likely evaporate in 12 minutes in the summer and 81 minutes in the winter. According to McBean, only 1% of the spill would seep into the expansion joints or cracks in the concrete, 94 to 99% of which would ultimately evaporate.

Because on-site data largely contradicted McBean’s findings, he rationalized that

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the quality of the on-site data is so poor that it cannot be relied upon except, for screening purposes, to show the presence or absence of a particular contaminant. To illustrate his opinions, McBean prepared several exhibits graphically depicting the dramatic differences between the on-site and off-site soil laboratory samples from 1001 E. Lincoln. ALT-1536 is a comparison of on-site and off-site soil samples taken from APC-5, APC-7, and APC-9A-three locations where testing indicated the soil was most contaminated. On-site PCE sampling at APC-5 showed PCE in the soil at concentrations of 1,403 ppb (two feet), 559 ppb (four feet), 1,340 ppb (six feet), 571 ppb (eight feet), and 605 ppb (ten feet), respectively, whereas off-site testing indicated PCE concentrations of only 58 ppb (two feet), 12 ppb (four feet), 20 ppb (eight feet) and non-detect (twelve feet). On-site sampling at APC-9A indicated concentrations of PCE at 291 ppb, two feet below the ground, while off-site testing showed concentrations of only 16 ppb at the same depth. The highest reading at APC-7 was 449 ppb PCE in the soil at 12 feet, whereas off-site readings are less than 5 ppb (a non-detect) at all depths. The on-site sampling results were never duplicated by the City in subsequent testing at the same location and were never, except on an intra-laboratory basis, compared to the off-site results for consistency.

Based on these and other factors, McBe-an opined that the off-site soil data is more appropriately utilized because it has been subjected to better QA/QC procedures and is more reliable than what he considered to be the City’s inflated, on-site results. McBean sought to reinforce this opinion by pointing out that the City’s choice to use the on-site data for modeling purposes at APCO directly conflicts with the data selection approach taken by the City at its own Bus Barn property.

There, the City used off-site laboratory data and referred specifically to the on-site data as being “for screening level purposes only.” On-site results were consistently higher than the off-site results at the Bus Barn, just as they were at APCO.

The City’s response to McBean’s criticisms has been that chlorinated solvents collected from the soil at APCO volatilized as they were transported from 1001 E. Lincoln to the off-site lab in capped, sealed plastic sleeves, resulting in the dramatically lower concentrations reported by the off-site lab.

The City claims the samples did not volatilize to the same extent at the Bus Barn because the soils there contain high levels of organic carbon, or “cinders,” which adsorb TCE, thereby minimizing chlorinated solvent volatilization. The City asserts that the soil at 1001 E. Lincoln does not contain cinders and, as a result, the soil samples at 1001 E. Lincoln volatilized more rapidly during transport to the off-site lab.

To justify its theory that the soil at the Bus Barn contains cinders, the City performed a total organic carbon (TOC) test on the Bus Barn soil. McBean considered

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the City’s TOC test to be unreliable because it does not distinguish between the carbon content in the soil/cinders and the carbon content in the chlorinated solvents themselves. It is his belief that the relatively high TOC concentrations in the soil at the Bus Barn were probably indicative of high chlorinated solvent contamination rather than high organic carbon content in the soil.

Not only were off-site results used for modeling purposes at the Bus Barn, but lower cleanup standards were applied there than were applied at APCO. Under the KDHE’s Interim Remedial Guidelines (IRG), which the City used at the Bus Barn, the PCE soil cleanup standard was 50,000 ppb. Under the KDHE’s March 24, 1999 RSK guidance, which the City claims is applicable to 1001 E. Lincoln, the PCE soil cleanup standard is only 180 ppb for PCE.

Several exhibits graphically depict comparisons between chlorinated solvent concentrations and the cleanup standards applied at the Bus Barn as opposed to 1001 E. Lincoln. ALT-1554 compares the most stringent cleanup standards for the two properties. ALT-1557, which compares the off-site laboratory soil chlorinated solvent concentrations at the Bus Barn prior to remediation and the off-site concentrations at 1001 E. Lincoln, illustrates that the off-site soil concentrations of chlorinated solvents at 1001 E. Lincoln are so small that they can barely be plotted. From this evidence, McBean concluded that, even after remediation of the Bus Barn soil, the chlorinated solvent levels from both the on-site and off-site laboratories are dramatically higher there than the chlorinated solvent levels at 1001 E. Lincoln.

According to ALT, this evidence illustrates a great hypocrisy: The City left most of the contamination in the soil at the Bus Barn, while at 1001 E. Lincoln, where no significant contamination was detected by the off-site lab, the City is demanding cleanup. While the City’s decision to treat the Bus Barn property to an opposite approach is troubling, the court finds that legitimate concerns regarding the volatili-zation of chlorinated solvents at APCO, during transport to the off-site lab, justify reliance on the on-site data at that location.

ALT additionally argues that the City’s approach at 1001 E. Lincoln is not only inconsistent with the approach taken at the Bus Barn but is also inconsistent with CDM’s conclusion, in its draft source control measures report, that soil contamination at APCO is not contaminating the groundwater at concentrations above the ACL’s. In 1998, CDM prepared an APCO draft source control measures report, which utilized VLEACH modeling to estimate likely PCE contributions from soil to groundwater at the APCO site. CDM’s modeling concluded that “[t]he predicted PCE concentrations in groundwater are well below the ACL of 14 ugL for both the no action and SVE scenarios.”

McBean performed the same VLEACH modeling, using even more conservative estimates, and again concluded that the concentrations of chlorinated solvents in the soil at APCO would not leach to the groundwater at concentrations above the ACLs. Instead, it is McBean’s opinion that the high concentrations of groundwater contamination underlying 1001 E. Lincoln are the result of upgradient sources from Pride, from the Bus Barn, from Wichita

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Eagle, from the so-called South Wash source, from an upgradient source in the vicinity of well TW-1 (located on the Tennyson Sheet Metal property), and possibly from Walter Morris, the property immediately south of 1001 E. Lincoln. In reaching this opinion, McBean considered the data at the site, the groundwater flow directions and velocities surrounding 1001 E. Lincoln, and the degradation rate characteristics of the chemicals of concern. He utilized DYNFLOW, DYNTRACK and CHAIN computer modeling. McBean deliberately chose to use DYNFLOW and DYNTRACK because they were the City’s experts’ models, which he claimed enabled him to make an “apples to apples comparison.” He also used an “octanol/water effect” or “sponge” theory to explain why, in his view, the contamination found at TW-1 indicates an upgradient source caused the contamination discovered at APC-910B and APC-7, despite the fact that the concentrations of chlorinated solvents found at TW-1 are less than the concentrations of chlorinated solvents detected at those downgradient locations on APCO’s property. He employed a “fingerprinting” analysis to show that TW-1, as opposed to APC-5, was the source of chlorinated solvent contamination at 910B.

McBean’s conclusion that APCO is not contributing to groundwater contamination above the ACLs, however, is necessarily dependent upon his ability to explain away the contaminant concentrations reported at virtually every sampling location on and around the APCO property. According to McBean, nothing at APC-3 indicated that APCO contributed contamination above the ACLs because the on-site data was not reliable, the off-site data was below RSK cleanup levels, and the groundwater was not sampled. He reached the same conclusion as to APC-5 and APC-9A because the on-site data was not reliable, the off-site data was below the RSKs, and there was allegedly an improper chain of custody on the groundwater samples. At APC-7, he contended there is no shallow groundwater contamination and the

deep

soil contamination is likely from the wicking up of contaminants in the groundwater below. At APC-9, he alleged that both on- and off-site soil concentrations were below the RSKs, and samples were not analyzed for groundwater contamination. At 910B, he opined the groundwater detections are from upgradient sources in the vicinity of TW-1.

In addition to McBean’s charge that the City’s data was unreliable, he also questioned the City’s use of certain data, including the City’s attribution of certain contamination to the APCO property. The most contaminated groundwater sample collected in the vicinity of 1001 E. Lincoln was collected at WM-1. WM-1 is located about six feet south of APCO’s southern property line. Groundwater concentrations sampled in March 1996 indicated the presence of PCE at 1200 ppb, TCE at 7300 ppb, cis-1,2 DCE at 17,000, trans-1-2DCE at ND 250 and vinyl chloride at ND 450. Those readings are approximately five times as high as the next highest groundwater sample readings at location 910B, which is located a few feet and slightly northwest of WM-1.

In McBean’s opinion, the contamination at WM-1 did not come from APCO, but came from contaminated soil overlying the Walter Morris property. McBean came to this conclusion after considering the data from well 828-8B, located about four feet upgradient from WM-1 on the Walter Morris property. Although 828-8B lies directly upgradient of WM-1, between WM-1 and the APCO property, contaminant concentrations there were approximately 50 times less, or roughly 2%, of the levels reported at WM-1. Because the groundwater flows generally north-to-south, it is highly unlikely, in McBean’s

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opinion, that chlorinated solvents migrated from the shallow groundwater at APCO past 828-8B and into the groundwater at WM-1. Nor is it likely, according to McBe-an, that chlorinated solvents could have migrated in the dry soil above the groundwater past 828-8B and into the groundwater at WM-1. The only reasonable explanation, in McBean’s view, is that the groundwater concentrations at WM-1 were caused either from contaminated soil overlying WM-1 leaching to the groundwater or from contaminated soil getting pushed down to the groundwater through geoprobe sampling at WM-1.

To emphasize his conclusion, McBean calculated how many drops of PCE in the soil at the surface it would take to reach the groundwater contaminant concentrations noted in the shallow groundwater at WM-1. Using a two-inch Geoprobe, McBe-an opined only 1.7 drops of PCE from an eye-dropper would yield the chlorinated solvent concentrations reported at WM-1. Using a one-inch geoprobe, it would take only approximately .8 drops to cause the levels of contamination reported there. The City never took soil samples at WM-1. Therefore, McBean contends that the City has faded to properly investigate whether the groundwater contamination at WM-1 might be due to a direct release onto the soil at the Walter Morris property. Instead, the City simply attributes that contamination to APCO. McBean makes a persuasive argument. It is quite peculiar that just a few feet north of WM-1 (and still on the Walter Morris property), well 828-8B showed DCE concentrations far less than both WM-1

and

some of the sample points underlying APCO. This strongly suggests that wherever the WM-1 contamination originated, it did not migrate south from APCO. It also raises the unanswered question of why the City did not consider Walter Morris as a PRP.

In the end, the dispositive fact is that chlorinated solvents were found in the soil and groundwater at several locations

the APCO property. The debate about whether groundwater contamination may have migrated under the APCO property from other locations can never be conclusively resolved one way or the other. However, the only credible explanation for finding chlorinated solvents in the APCO soil is that they were spilled on the ground at the APCO facility. Moreover, the contamination was measured over 20 years after any spills at APCO would have occurred. The court reasonably infers that 20 years of leaching and diluting has reduced the chlorinated solvent concentrations, particularly in the soil, and that readings taken closer to the time of the spills would have yielded even higher concentrations than we see today. The court further concludes that chlorinated solvent concentrations in the shallow groundwater underlying APCO, combined with the evidence of significantly lower chlorinated solvent concentrations in the shallow groundwater upgradient of the facility, show that the chlorinated solvents released to the soil at APCO have leached to the underlying groundwater in concentrations sufficient to exceed the ACLs for some or all of those contaminants and their daughter products.

2. Reid Supply Company

Reid Supply Company sold supplies to dry cleaners, mainly in Wichita. Among the supplies were chlorinated solvents, primarily PCE, although Reid also handled some TCE. In 1975, Reid purchased a warehouse located at 911 E. Indianapolis (warehouse or 911).

See

App. C-3.

*1070

occupied the warehouse until 1988. PCE, and to a lesser extent TCE, was stored at 911, primarily in 55 gallon steel drums. The drums containing the chlorinated solvents were delivered by truck to Reid’s customers, which used the solvents in their dry cleaning operations.

The exact date of original construction of the warehouse at 911 was not established, but it was at least 25 years old when Reid purchased it. The floor of the warehouse is concrete of unknown thickness. It is elevated approximately 3-4 feet above ground level, presumably to accommodate deliveries by truck or rail to a covered loading dock which runs part way along the west side of the warehouse. It was not established at trial whether there is open space between the warehouse floor and the ground or whether the space is filled with dirt.

Starting in 1975 and continuing through 1978 (and perhaps as late as 1981), PCE was delivered to 911 by Vulcan Chemical using a bulk tank truck which parked at the loading dock near what was later to become a geoprobe site called RSI-7 and a monitoring well known as 946B. The amount and frequency of the PCE deliveries was not precisely established at trial and is not all that important. It certainly amounted to between several hundred and 3,000 gallons per month.

The evidence regarding what happened during the transfers was not uniform, due in part to the passage of time and the differing responsibilities of the Reid employees who testified. Jerry Letterman supervised the warehouse from 1975 to 1978. He recalled that PCE was stored and sold in 55 gallon drums and perhaps 5 gallon and 1 gallon cans. When bulk deliveries were made, Vulcan’s tank truck pulled up to the loading dock. A hose from the truck was run through one of the doors on the warehouse to a line of empty drums. The drums were then filled with PCE and stored in the north end of the warehouse until they were delivered to Reid’s customers. The 5 and 1 gallon containers of PCE were manually filled from “spigots” on the 55 gallon drums. Mike Letterman, Jerry’s son, who worked at the warehouse from about 1975-78, testified similarly.

The evidence established that from time to time, “spills” of PCE (and perhaps TCE) occurred inside the warehouse. The amount ran the gamut from 4 or 5 spills of 5 to 25 gallons of PCE to drips or small overflows on top of the drums which occasionally got onto the concrete floor. Usually, the drips were wiped up with a cloth. Gene Stamm, who acted as general manager of the warehouse, could not recall any spills but he also testified that he would not have been present if spills had occurred when drums were filled from the tanker. Charles and David Trombold testified that they were not aware of any spills, but Charles did not work at the warehouse until the early 1980s and David not until 1981, after bulk deliveries had ceased. Charles Millsap saw no spills, but he was not hired by Reid until 1986. David Shaw also saw no spills but he did not begin work until 1979. The testimony of these late-comers regarding the absence of spills was not persuasive. Mike Evers-man, one of Reid’s experts, testified that there were spills totaling 5-7 gallons, in addition to drips, based upon his review of deposition testimony of Reid’s employees.

The court finds from the credible evidence that from 1975 until 1978, and perhaps as late as 1981, there were occasional spills of chlorinated solvents, primarily PCE, onto the concrete floor. The court accepts Eversman’s testimony regarding the amount spilled, although the amount is not material for the reasons hereafter stated. It is inconceivable that no spills occurred over this period given the frequen

*1071

cy and amounts of chlorinated solvents stored and transferred at 911. Moreover, there is no evidence that spills, particularly small ones, were events of environmental concern to Reid at the time. Indeed, based upon the totality of the evidence at trial, relatively small spills or releases of chlorinated solvents were not especially worrisome to anyone in the 1970s, except perhaps environmentalists.

PCE can permeate concrete, depending on factors such as the concrete’s age, thickness and the existence of cracks or voids. The thickness of the concrete floor was not established. Walter Trombold testified that there were small cracks in the floor, which he filled. David Trombold saw “hairline” cracks. There were cracks in the floor at the time of trial but the age and depth of the cracks were not established. Eversman “scanned” the cracks and construction joints with an organic vapor analyzer to screen for the presence of volatile organic vapors or compounds. The results were negative but also inconclusive as to the presence of chlorinated solvents during the period of Reid’s occupancy of 911. The most persuasive evidence that PCE or TCE spills permeated the concrete floor would have been from soil samples taken directly beneath the building. No such samples were taken.

Based on the totality of the evidence, the court finds that the City has not met its burden to demonstrate that spills or drips of chlorinated solvents inside the warehouse permeated the concrete floor and reached the soil and groundwater underneath the building. This finding does not end the inquiry, however, because of the evidence of chlorinated solvents in the soil and groundwater at RSI-7 and in the groundwater at 946B. Some additional background information is needed to place this evidence in perspective.

RSI-7 is a geoprobe location about 13 feet west of the loading dock on the west side of the warehouse. It is where the Vulcan tank truck parked when PCE bulk deliveries were made. When Martin geo-probed RSI-7 in April 1998, he followed the mandated procedures. -Another of Reid’s experts, David Gallis, criticized Martin’s method of analysis and described supposedly more accurate methods such as off-site testing. As previously noted with respect to Martin’s testing at APCO, the court is not persuaded that Martin’s methods were unorthodox or so prone to error that Martin’s on-site test results should be disregarded. Martin understood that if screening revealed the presence of chlorinated solvents, additional samplés would be taken and sent to an off-site certified laboratory. Nevertheless, for reasons never fully explained, it does not appear that any off-site testing was done at RSI-7. That was not Martin’s responsibility or fault.

Martin’s on-site chemical analysis of the soil at RSI-7 revealed the presence of PCE, TCE and DCE at 1, 4, 8, 12 and 14.5 feet bgs. PCE, TCE and DCE, as well as TPH (gasoline) were found in groundwater at depths ranging from 19-26 feet. The presence of PCE in the soil at RSI-7 is consistent with spills having occurred there. Later, in March and May 2002, PCE, TCE, DCE and VC were found in groundwater samples taken at permanent monitoring well 946B, which is adjacent to and slightly south of RSI-7.

At the KDHE’s request, CDM did extensive testing of carbon and sulfate concentrations at the Site, including at 911. As explained elsewhere in this decision, the presence of carbon, such as petroleum or other organic materials, potentially accelerates the degradation or dechlorination process. Sulfates, on the other hand, potentially retard the process. CDM determined that sulfate concentrations at the Site are “naturally very high” except, curi

*1072

ously, at APCO and 911, where “extra carbon” is said to be present.

The presence of “extra carbon” at 911 may (or may not) be explained by historical uses of the property. During the 1930s and 40s, prior to the construction of 911, the area occupied by the northern part of the building was a coal yard. In the middle was a bulk oil station. Just south of 911 were two underground fuel storage tanks, which were found to be leaking when removed in the 1980s. In addition, Reid had an underground gasoline storage tank near the northeast corner of 911. All of these locations were potential sources of petroleum hydrocarbons and high levels of petroleum were found in the groundwater near where the underground tanks were removed. In addition, prior to 1950, the area immediately to the northwest of 911 was a junkyard. Farther to the north was a railroad maintenance yard. Because of the generally north-to-south direction of groundwater flow, both of these areas were theoretical sources of petroleum hydrocarbons, as well as chlorinated solvents, although no soil or groundwater samples were taken in either location.

The City’s expert witness Olsen offered his opinion that 911 was a source and is a continuing source of chlorinated solvent contamination at the Site. Olsen focused on RSI-7 as a source of contamination based on evidence of PCE and TCE in the soil. Because gasoline was also present, he believed that significant dechlorination has occurred which also explains the concentrations of VC in the shallow groundwater. Olsen testified that petroleum products such as gasoline are depleted during the dechlorination process and that as the petroleum products are depleted, sulfate concentrations in shallow groundwater can increase from upgradient flow. It was Olsen’s opinion that the current high readings of sulfate at RSI-7 could be accounted for because the gasoline has been depleted and sulfates have flowed back into RSI-7 from upgradient sources. When the chlorinated solvents reach areas where the sulfate levels are high (and levels of carbon are correspondingly low), dechlorination of PCE and TCE slows down and dechlorination of DCE to VC may cease altogether, thus accounting for DCE’s presence in the groundwater. Olsen’s ultimate conclusion was that the DCE present in shallow groundwater at RSI-7 and 946B is the result of dechlori-nation at that location, not from an upgra-dient source.

Olsen’s views were both supported and refuted by the City’s witness Hendron, who offered opinions regarding sources of contamination. Hendron accepted the soil data at RSI-7, which showed PCE, TCE and DCE in the soil. Because DCE is a daughter product, a reasonable inference from this testimony is that Hendron also would accept that dechlorination has occurred in the soil at RSI-7, in contrast to Olsen’s statements that dechlorination occurs only in groundwater.

Olsen’s opinions regarding 911 were vigorously challenged on cross-examination and by the testimony of Reid’s witness, Eversman. No useful purpose will be served by summarizing the details of Olsen’s cross-examination testimony. Olsen did admit that no shallow groundwater reading at 911 exceeds either the ACL or Maximum Contaminant Level (MCL) for PCE or TCE.

However, shallow groundwater readings for DCE dramatically exceed the ACL at RSI-7 and 946B. Olsen steadfastly held to his opinion that migration was not a factor at RSI-7 because it is a source of contamination. Notwithstanding the opinion of their witness, the City has acknowledged the obvious: that high readings of DCE at 911 can be partially

*1073

explained by groundwater migration of “very low levels of DCE” from upgradient sources.

Reid’s explanation for the chlorinated solvents at RSI-7 and 946B is multifaceted. First, Reid asserts that the KDHE has not determined that 911 is a source of contamination. Second, it contends that any contamination at and around 911 migrated there from upgradient sources, not from dechlorination of spills at 911. Third, it argues that any contamination around its property can be explained by sewer leaks.

The evidence regarding the KDHE’s determination of 911 as a source of chlorinated solvent contamination is based on the testimony of Christine Jump, KDHE project manager of the Site from 1994 to present, who stated on direct examination that:

Q Similarly, based on the soil and groundwater data as well as information about chlorinated solvent at the facility, has KDHE determined whether there has been a release of chlorinated solvents from the former Reid Supply facility at 911 E. Indianapolis?

A I believe that Reid Supply is a source of contamination to the groundwater that needs additional investigation as well.

On cross-examination, Jump testified:

Q Okay. And, in fact, you’ve had discussions as recently as I think the first quarter of this year with Roger Olsen that you needed more information about what was going on at Gilbert and Mosley before you would, you the KDHE, would be willing to sign off on whether a party was a source or a continuing source?

A Yes. We asked for additional monitoring wells.

Q And as I understand it, you are still not in a position today to determine whether Reid Supply is a continuing source at Gilbert and Mosley?

A I believe it is based on the data I’ve seen; but I want additional data to confirm that, yes.

Q Right. You don’t have enough information right now to confirm one way or the other. You need more?

A Yes, that’s accurate.

The court finds from this testimony that Jump believes 911 is a source of contamination but is reserving her opinion regarding whether Reid is a

continuing

source. Significantly, Jump never testified that the KDHE did

not

consider 911 to be a source. Rick Bean, the KDHE project manager who preceded Jump, did not testify one way or another whether he considered 911 to be a source. Based on all the evidence, the court finds that the KDHE believes 911 is a likely source of chlorinated solvent contamination at the Site.

Reid’s next contention is that any contamination found at and nearby 911 came from upgradient sources. It bases this contention on a combination of three factors: (1) groundwater contamination readings from geoprobe and monitoring well locations north of 911; (2) the presence of potential upgradient sources of contamination and (3) the generally north to south flow of groundwater throughout the Site.

There are four wells north of 911 which were sampled for groundwater contamination. They lie in an west-east line along the north side of Indianapolis Street. 911 is on the south side of Indianapolis Street. Well 253 is northwest of 911; wells RSI-5 and RSI-1 are immediately north and PTW-2 is northeast. The groundwater at 911 flows about one foot per day, generally in a north to south direction, although the direction of localized flow is a matter of dispute. Obviously, though, the presence of chlorinated solvents in groundwater north of 911 cannot be due to spills or releases at 911.

*1074

Eversman was Reid’s principal witness on the issues pertaining to chlorinated solvent contamination at 911. In a nutshell, Eversman’s opinion was that 911 is not a source of contamination at the Site. He testified that dechlorination, which he called “biodegradation,” was not occurring at 911 and that the DCE found in groundwater samples was not the -degraded result of a release of PCE at 911, but instead was the result of migration from upgradient sources. Eversman opined that remediation “may not be necessary” because chlorinated solvents are not leaking into groundwater. Eversman noted that the City was not remediating similar conditions at the Bus Barn and Kellogg.

To explain his opinion that dechlorination was not occurring at 911, Eversman discussed both the soil and groundwater test results. Although he disagreed with the quality of the soil data taken in 1998 at RSI-7,- he accepted it. He noted the absence of data regarding carbon in the soil at RSI-7, which presumably supported his view that dechlorination was not occurring in the soil. Comparing and contrasting the soil and groundwater data readings, Eversman opined that if dechlorination was still occurring in the soil at RSI-7, he would expect higher PCE and TCE readings in the groundwater, and more DCE in the soil as well as at the interface between the soil and groundwater.

Eversman next compared the groundwater readings taken in 1998 and 2002 at RSI-7 and 946B, respectively. He noted that the 2002 DCE readings decreased in the order of 65-70% from the 1998 readings, which he considered “indicative of a source perhaps not as much mass or having expired as a source area .... ” He pointed out that in 1998, the TPH (gasoline) reading at RSI-7 was 857 ppb. By 2002, it was a non-detect, which suggested the absence of carbon, a “food source” for dechlorination.

Eversman acknowledged that the sulfate reading of 249 ppm from CDM’s tests was sufficient to inhibit the dechlorination process. He tested for sulfides. A positive test is an indicator of reactions between carbon (TPH) and sulfates, which would point to ongoing dechlorination. The results were negative.

Having eliminated, in his view, dechlori-nation in the soil as an explanation for chlorinated solvents in the groundwater at Reid, Eversman amplified on his opinion that upgradient sources accounted for the contamination. Eversman noted that some of the test wells north and west of 911 had groundwater PCE readings equal to or higher than any at 911, which suggests dechlorination of PCE north of 911 as a possible explanation for the DCE readings at 911. On cross-examination, Eversman acknowledged that PCE also was detected throughout the soil at RSI-7, which is consistent with PCE spills at that location.

Finally, Reid presented rather minimal evidence that chlorinated solvent contamination could be from leaks in sewers. Ev-ersman identified two particular points: (1) northwest of 911 in a line running from west to east along Indianapolis and (2) approximately one-third of the way down the east side of 911 in a line running in an alley. Eversman relied upon soil gas studies done in 1989 showing elevated levels of chlorinated solvents at those locations. He admitted, however, that he had no evidence that chlorinated solvents were in the sewers or that they had even been discharged into the sewers.

Taking all the evidence into consideration, as well as the reasonable inferences therefrom, the court finds that the City has met its burden to show that Reid is responsible for some of the chlorinated solvent contamination at and around 911. It is important to keep in mind that at 911,

*1075

as well as the other locations at the Site, chlorinated solvent spills occurred many years ago. The contamination first had to leach through the soil, a slow process. Finally, if and when the contamination reached the groundwater' — whether at a specific test location or upgradient of one — dechlorination was not instantaneous but rather, too, was slow. The observations and widely divergent opinions of the experts were based on relatively current events. Thus, the fact that readings taken in 1998 or 2000 do not exceed the ACL does not mean that they never did. On the contrary, when evidence of spills is combined with evidence of contamination at the same location, it is reasonable to infer that had readings been taken closer to the time of the spills, they would have been higher. Therefore, current readings below the ACLs do not automatically exonerate a defendant from responsibility for past contamination.

The evidence of chlorinated solvents in the soil and groundwater at RSI-7, as well as the groundwater at 946B, supports a reasonable inference that PCE was spilled there during bulk deliveries by Vulcan. Since chlorinated solvents do not occur naturally in soil or groundwater, what other explanation can there be? Although upgradient sources are a plausible explanation for groundwater contamination, they simply do not account for contamination in the soil at 911. Reid is responsible for the contamination resulting from these spills because of its contractual relationship with Vulcan. The evidence supports the conclusion that PCE from these spills has dechlorinated. It is reasonable to assume that PCE spilled in the area of RSI-7 and 946B eventually entered the groundwater and degraded to DCE and VC as it moved to the southeast. This tends to explain the presence of DCE and VC in the groundwater at RSI-10 and RSI-4 and RSI-11, all located southeast of RSI-7 and 946B.

The court also finds from the generally more persuasive evidence presented by Reid that some of the contamination at 911 migrated there from upgradient sources. The court rejects, however, leaks from sewers as a contributing factor. There is no evidence that chlorinated solvents were discharged upstream into the sewers and/or that chlorinated solvents, in fact, were in the sewers. Therefore, the only way chlorinated solvents could get into the sewers would be from infiltration from surrounding soil. The chlorinated solvents then would have to exfiltrate, or leak out, at other locations. This is simply too speculative to credit.

3. Land Tool Company

During the period from approximately 1975 to 1988, Land Tool Company and E.H. Land operated a motorcycle and athletic helmet manufacturing business at 650 E. Gilbert Street, where chlorinated solvents, including TCE, were handled, stored, and used.

See

App. C-4.

Land Tool used a TCE vapor bath to polish its helmets. TCE was poured into a heated container which created a vapor mist. Helmets were placed into this vapor mist to create a polished finish.

Land Tool kept a 55-gallon drum of TCE in the same room as the vapor bath so that additional TCE could be poured in as it was needed, approximately twice each day. TCE was hand-pumped from the drum into a one-gallon bucket, which was then used to pour the TCE into the vapor bath container. During this process, TCE periodically sloshed or dripped onto the floor. Land Tool employees occasionally

*1076

mopped the floor to keep it clean. The mop water was then dumped outside the building. About once per week, after they had pumped as much TCE out of a drum as possible, Land Tool employees set the drum outside the building and brought in another drum. Some TCE was always left in each barrel when it was taken outside.

Shallow groundwater samples taken immediately upgradient of 650 E. Gilbert contained non-detectable or very low concentrations of PCE and TCE while shallow groundwater samples taken immediately downgradient of 650 E. Gilbert contained substantially higher concentrations of TCE, which were above the ACL. Sample location BOG-10, which contained ■ the highest concentration of TCE in the shallow groundwater, was taken inside the footings of the building that had been located at 650 E. Gilbert. Considering the totality of the circumstances, chlorinated solvents were released at the Land Tool facility, causing groundwater contamination above the ACLs.

4. Tri-Supply Company

From approximately June 1, 1993 through November 30, 1996, Tri-Supply operated 330 S. Commerce as a dry cleaning supply facility at which Tri-Supply filled and stored 55-gallon drums of PCE, and from which it delivered PCE to Wichita area customers.

See

App. C-5.

Between June 1994 and June 1995, Tri-Sup-ply received at least 8 bulk tank truck deliveries of PCE totaling more than 8,100 gallons.

Shallow groundwater samples taken immediately upgradient of 330 S. Commerce contained maximum PCE concentrations of 52 ppb, while immediately downgradient samples contained 2,600 ppb of PCE. Soil samples taken near the 330 S. Commerce loading dock contained 937 ppb of PCE at 12 feet, 351 ppb of PCE at 14 feet, and 626 ppb of PCE at 15 feet. In addition to the analytic data evidencing groundwater and soil contamination, there is documented evidence of a spill of chlorinated solvent occurring at this facility. On June 21, 1994, a Tri-Supply employee spilled 2 gallons of PCE at 330 S. Commerce while filling a 55-gallon drum. Based on the evidence of soil and shallow groundwater contamination near the facility, the court concludes that a release of chlorinated solvents occurred at 330 S. Commerce that has contaminated the underlying groundwater above the ACLs.

C. The Releases Caused Plaintiff to Incur Costs

The court must now turn to the City’s response to the presence of chlorinated solvents at the Site. A prima facie case of CERCLA liability pursuant to § 113 requires the City to show that the respective releases of chlorinated solvents at the Site caused the City to incur response costs.

See Morrison,

302 F.3d at 1135 . To this end, the City presented evidence that releases at the Site have caused it to incur $13,329,954.50 in response costs through June 15, 2002. The court is satisfied, based in part on the prior discussion regarding the release of chlorinated solvents and on the other evidence adduced at trial, that the release of chlorinated solvents from each of defendants’ facilities to the underlying groundwater was sufficient to require the City to incur response costs.

D. Response Action Compliance with the NCP

The City must furthermore establish, as part of its prima facie case of CERCLA

*1077

liability pursuant to § 113, that its response action or cleanup was consistent with the NCP.

See Morrison,

302 F.3d at 1135-36 ;

see also

42 U.S.C. § 9607 (a)(4)(B) (liability includes “any other necessary costs of response ... consistent with the national contingency -plan”).

1. The NCP

“The NCP is EPA’s regulatory template for a ‘CERCLA quality cleanup.’ ”

Pub. Serv. Co. of Colo. v. Gates Rubber Co.,

175 F.3d 1177, 1181 (10th Cir.1999) (citation omitted). It sets forth a very detailed and comprehensive list of requirements governing various aspects of the City’s response action.

See

40 C.F.R. § 300.700 (c)(5)-(6) (listing NCP requirements and the corresponding regulations explaining each);

Morrison,

302 F.3d at 1136 (“The NCP is a long and detailed list of procedures that must be carried out by federal and state governments when they are responding to hazardous waste releases.”);

OHM Remediation Servs. v. Evans Cooperage Co., Inc.,

116 F.3d 1574, 1579 (5th Cir.1997) (noting that the NCP “sets performance standards, identifies methods for investigating the environmental impact of a release or threatened release, and establishes criteria for determining the appropriate extent of response activities”).

Despite the rather detailed manner in which these requirements are set forth, strict, to-the-letter compliance is not necessary. A “substantial compliance” standard was added to the NCP by a revision on March 8, 1990. The revision became effective on April 9, 1990.

See

National Oil and Hazardous Substances Pollution Contingency Plan, 55 Fed.Reg. 8666, 8666 (March 8, 1990). Because the City first incurred response costs in 1991, the court will apply the 1990 revisions to the City’s response action.

See Morrison Enters. v. McShares, Inc.,

13 F.Supp.2d 1095, 1112 (D.Kan.1998) (reversed on other grounds by

Morrison,

302 F.3d at 1130 ). “Substantial compliance” is therefore the relevant touchstone.

See

40 C.F.R. § 300.700 (c)(3)(i);

see also

55 Fed.Reg. at 8793 (noting that “strict compliance with [the] list [provided in § 300.700(c)(5)-(7) ] of NCP provisions is not required in order to be ‘consistent with the NCP’; the list is provided ... as guidance to private parties on those requirements that may be pertinent to a particular site”);

Morrison,

302 F.3d at 1136 (“Private parties need only show ‘substantial compliance’ with the NCP in order to meet the requirements of § 9607(a), § 300.700(c)(3)(i) ....”).

The specific requirements of the NCP depend also on “whether the response action is characterized as a removal or a remedial action.”

Pub. Serv. Co.,

175 F.3d at 1182 . A remedial action includes “those actions consistent with [a] permanent remedy.” 42 U.S.C. § 9601 (24). A removal action is less permanent and “is generally an emergency, interim response to particular site conditions.”

County Line,

933 F.2d at 1512 n. 6. It typically shall not exceed $2,000,000 in costs and shall not take longer than 12 months to complete.

See

42 U.S.C. § 9604 (c)(1);

see also Exxon Corp. v. Hunt,

475 U.S. 355, 360 , 106 S.Ct. 1103, 1108 , 89 L.Ed.2d 364 (1986) (“Governmental response consists of ‘removal,’ or short-term cleanup, § 9601(23), and ‘remedial action,’ or measures to achieve a ‘permanent remedy’ to a particular hazardous waste problem, § 9601(24).”).

The court has heard no evidence that the contamination at the Site posed a threat to human health or the environment which required an immediate response.

See Carson Harbor Village, Ltd. v. Unocal Corp.,

287 F.Supp.2d 1118, 1157-58 (C.D.Cal.2003) (finding that the response action was a remedial action in part because there was “no evidence in the record that the materials posed the type of threat to human health and welfare that required

*1078

immediate action”). And as far as the court can tell, defendants do not claim otherwise. In light of the various remedial goals expressed by the City at trial, and because the City’s response action exceeds the bounds specified in § 9604 in terms of both cost and the length of time required for completion, the court deems the City’s action remedial in nature and characterizes it as such when judging the City’s compliance with the NCP.

The requirements governing the City’s remedial action relate to “(1) worker health and safety; (2) documentation of cost recovery; (3) permit requirements; (4) identification of applicable or relevant and appropriate requirements (ARARs); (5) remedial site evaluation; (6) remedial investigation/feasibility study and selection of remedy (RI/FS), and (7) ... an opportunity for public comment.”

Pub. Serv. Co.,

175 F.3d at 1182 (citation omitted). Some of these requirements were not the subject of testimony. There was substantial disputed testimony regarding the City’s selection of a remedy and, in the process of doing so, its rejection of what has been referred to as “natural attenuation,” or “monitored natural attenuation,” which essentially means allowing the groundwater to clean itself over time. The court thus thinks it necessary to set forth in more detail the requirements governing the City’s remedy selection.

To select a remedy in a manner consistent with the NCP, the City must first develop an RI to “collect data necessary to adequately characterize the site for the purpose of developing and evaluating effective remedial alternatives.” 40 C.F.R. § 300.430 (d)(1). Using that data, the City must then “conduct a site-specific baseline risk assessment to characterize the current and potential threats to human health and the environment.”

Id.

§ 300.430(d)(4). The NCP next requires the City to conduct an FS “to ensure that appropriate remedial alternatives are developed and evaluated.”

Id.

§ 300.430(e)(1). Pursuant to the FS, the City must outline various alternatives, including a “no action” alternative, that are protective of human health and the environment.

Id.

at § 300.430(e)(2),(6).

The NCP requires the City to screen the alternatives that it identified in the FS in light of their effectiveness, implementa-bility, and cost.

Id.

at § 300.430(e)(7)(i)-(iii). The City must then conduct a more detailed analysis of the alternatives still considered viable after the initial screening. Pursuant to the detailed screening, (1) each alternative must satisfy two threshold criteria: overall protection of human health and the environment and compliance with ARARs, and (2) each must be considered in light of five primary balancing criteria: long-term effectiveness and permanence, reduction of toxicity, mobility, or volume through treatment, short-term effectiveness, implementability, and cost; and two modifying criteria: state and community acceptance.

Id.

at § 300.430(e)(9)(iii),(f)(l)(i)(A)-(C). The City must additionally present the selected remedial alternative to the public in a proposed plan.

Id.

§ 300.430(f)(2).

2. General Description of City’s Response Action

During investigations conducted pursuant to the EPA/KDHE multisite agreement, the KDHE detected chlorinated solvent levels in the groundwater at the Site that exceeded federal drinking water standards. It expected the contamination to pass beneath the Arkansas River, thus threatening public water supply wells to the south of the river.

As a result of its findings, the KDHE determined that a remedial investigation and feasibility study (RI/FS) was necessary. In 1992-1993, pursuant to the City/

*1079

KDHE agreement, the City collected and analyzed data, which it compiled into its draft RI/FS and submitted to the KDHE.

Following a public review and comment process, the KDHE approved the final RI on January 26, 1994, and the final FS on April 8, 1994. These reports described the geology and hydrogeology of the Site and surrounding region and the extent of groundwater contamination and other environmental conditions at the Site, evaluated contaminant fate and transport and biodegradation processes, identified potential contaminant source areas, and included a baseline risk assessment evaluating the threats to public health and environment posed by the chlorinated solvent contamination.

The KDHE prepared a draft Corrective Action Decision for Interim Groundwater Remediation (CAD), which summarized the RI/FS and, based on the results it contained, initially approved a “pump and treat system” as the preferred remedial alternative for groundwater remediation. Following a public review and comment process that included an opportunity for the public to comment on the selected remedial alternative from June 6, 1994, to July 6, and a public meeting held by the KDHE and the City on June 21, 1994, the KDHE issued a final CAD for Interim Groundwater Remediation on September 28, 1994. In it, the KDHE ultimately rejected various alternatives for remediation and verified the pump and treat system as the preferred remedial alternative.

The pump and treat system essentially involves the following: (1) hydraulic containment involving groundwater extraction and treatment to acceptable levels;

(2) institutional controls, including the prohibition of newly constructed private water wells for private or public drinking' water purposes; (3) compliance monitoring; (4) long-term monitoring; (5)' individual source control activities; and (6) microbiological studies to determine the efficiency of microbiological'enhancement.

The pump and treat system is designed to pump groundwater, contaminated above the ACLs, out through extraction wells, treat it to reduce chlorinated solvent levels to the MCLs, and then ultimately release the water into the Arkansas River. The system required the City to identify areas where the contamination exceeded ACLs, develop the number, location and size of extraction wells and create a system for groundwater transport, treatment and disposal.

After the KDHE issued the 1994 CAD, the City continued to collect data and submit drafts of work plans and reports to the KDHE for its review. In 1995, the City collected .groundwater data using geo-probes and permanent monitoring wells and prepared a QAPP to ensure the quality of the data collected. The City and CDM compiled the data and presented it to the KDHE in two reports: a Pre-De-sign Data Acquisition Draft Field- Activities Summary Technical Memorandum, dated September 1995, and a Preliminary

*1080

Design Report, dated February 1996. Using the 1995 data, CDM updated a mathematical model of groundwater flow and contaminant transport that it initially created to assess the movement of groundwater and contaminants within the Site, to evaluate the effectiveness of remedial alternatives and to determine the extent of the contaminant plumes from the various sources within the Site.

The KDHE reviewed and commented upon the refined groundwater model and its comments were incorporated into a Preliminary Design Report. As required by the CAD, the City also conducted a bio-pilot demonstration study to determine whether innovative remedial alternatives involving bioremediation might be feasible for the Site. In 1997 and 1998, the City collected additional data to investigate each ACL plume pursuant to the KDHE-reviewed and approved work plans to determine where to locate remedial systems within plumes and to conduct a more detailed investigation at source areas.

The City compiled and assessed the quality of the data in two reports: the Data Report and Assessment of Data Quality dated June 1998, and the Data Report and Assessment of Data Quality Addendum dated October 1998 (Data Quality Reports). The KDHE reviewed and commented on the Data Quality Reports and approved them on June 9, 2000. It determined that the data was suitable for the KDHE’s regulatory purposes, including finding sources of contamination, designing the remedy, and determining the nature and extent of contamination at the Site.

The City summarized and evaluated the data from plume investigations and evaluated remedial alternatives for design in its March 1, 1999, “Remedial Investigation and Feasibility Study Addendum.” The City further refined the groundwater model with the additional data and used it to re-evaluate remedial alternatives. The KDHE rejected monitored natural attenuation as a remedial alternative because it found that natural attenuation would take much longer than the pump and treat remedy and would not degrade chlorinated solvent contaminants before they reached the Arkansas River. The KDHE directed the City to proceed with the design of Alternative 2b in the RTFS Addendum, providing for the pump and treat containment and remediation of the commingled plumes A, B and E. The KDHE determined that the pump and treat system is necessary because the contamination plumes were becoming larger, were migrating towards the Arkansas River and into previously uncontaminated areas and were degrading natural resources, and that contamination must be contained and remediated, pursuant to the NCP, to restore aquifers to their most beneficial use.

Based on the data from plume investigations, the City completed the design of the pump and treat remedial system and submitted the corresponding design reports to the KDHE. After the City responded to the KDHE’s comments on the design reports, the KDHE reviewed and approved the Final Design Report and directed the City to prepare the Remedial Action Work Plan for construction of the remedy.

On February 23, 2001, the City submitted to the KDHE the Final Remedial Action Work Plan for the downgradient groundwater remediation of plumes A, B, and E and subsequently began to construct the pump and treat remedial system. According to the work plan, the system was to include 13 extraction wells, placed at various locations within the Site based on the groundwater and transport model, and approximately 5.6 miles of piping for conveying the extracted groundwater to a treatment facility located at Herman Hill Park. The system also was to

*1081

include six venturi air strippers that strip contaminants out of the groundwater.

In March 2001, the KDHE issued an “Explanation of Significant Differences to the Final Corrective Action Decision, Gilbert and Mosley Interim Groundwater Remediation” (ESD) to describe to the public certain changes to the remedy selected in the KDHE’s 1994 CAD. The ESD informed the public that the remediated groundwater from the Site was to be discharged to the Arkansas River. The ESD also notified the public that a minimum of seven air strippers were to be utilized in the remediation of the groundwater and estimated the time necessary to achieve the remedial goals of the CAD for plumes A, B and E to be 60 years. The KDHE approved all modifications described in the ESD and concluded that the revised remedy complies with CERCLA, is necessary and protective of human health and the environment and is cost effective.

3. Standard of Review for KDHE Determinations

All parties are in apparent agreement, and correctly so, that a

de novo

standard applies to the court’s review of any legal determinations made by the KDHE in this matter. The parties dispute, however, the correct legal standard applicable to the KDHE’s factual findings and draw opposite conclusions from the Tenth Circuit’s statements in

Amisub (PSL), Inc. v. State of Colo. Dep’t of Soc. Servs.,

879 F.2d 789 (10th Cir.1989).

The court recognizes that CERCLA authorizes the President to “provide for remedial action relating to such hazardous substance ... which the President deems necessary to protect the public health or welfare or the environment.” 42 U.S.C. § 9604 (a)(1). As the President’s delegated agent, the EPA can also initiate a remedial action.

See Key Tronic Corp. v. United States,

511 U.S. 809, 814 , 114 S.Ct. 1960, 1964 , 128 L.Ed.2d 797 (1994). CERCLA specifies that “the court shall uphold the President’s [or EPA’s] decision in selecting the response action unless the objecting party can demonstrate, on the administrative record, that the decision was arbitrary and capricious.” 42 U.S.C. § 9613 (j)(2). But based on the evidence presented at trial, the court finds that the EPA played only a minimal role in the remedy selection process beyond its initial entry into the EPA/KDHE multi-site agreement.

The City nevertheless states that “the President delegated his authority to enter into cooperative agreements to EPA,”

see

Exec. Order No. 12,580 § 2(i), 52 Fed.Reg. 2,923 (Jan. 23, 1987), and that “[a]fter the President issued this order, KDHE and EPA entered into the cooperative agreement.” The City thus concludes that “[h]aving acted within the authority given to it under federal law, KDHE’s findings and determinations are entitled to deference unless they are found to be arbitrary and capricious.” But this contractual relationship between the EPA and the KDHE and finally the City seems too attenuated, by itself, to justify review according to the arbitrary and capricious standard of § 9613(j)(2).

The court is reluctant to defer to the factual determinations made by the KDHE, a

state

agency, regarding the

*1082

City’s compliance with the NCP, a regulation enacted pursuant to

federal

law, without clear, on-point authority to do so. Therefore, the court will evaluate the KDHE’s factual determinations regarding NCP compliance

de novo. See United States v. Akzo Coatings of Am., Inc.,

949 F.2d 1409 , 1425 n. 12 (6th Cir.1991) (“If EPA plays only a limited role in formulating a plan, then the President cannot be deemed to have taken or ordered the remedy, and a reviewing court would not be bound by the administrative record and the arbitrary and capricious standard”).

4. Presumption of NCP Compliance

The City contends that it is entitled to a rebuttable presumption that its response actions are consistent .with the NCP because the Site is included in the same pilot deferral program under the EPA-KDHE Cooperative Agreement as is the Scoular site at issue in

Morrison,

302 F.3d at 1136-38 . In

Morrison,

the Tenth Circuit, noting that the KDHE had approved the documents prepared by plaintiff in connection with the clean-up of the Scoular site, declared that

in the context of implementing this particular deferral program, Region VII of the EPA strongly indicated that compliance with the state orders, and acceptance of state oversight, would establish compliance with the NCP. Under 'the Cooperative Agreement between the EPA and the KDHE, the EPA stated that the KDHE’s system of oversight and implementation of cleanups of hazardous waste sites in Kansas is consistent with the NCP and achieves CERC-LA-protective cleanups.

Id.

at 1138 . The Tenth Circuit further noted without disagreement that this court concluded that the pilot deferral program under which the KDHE acted at the Scoular site, which is the same as at the Gilbert and Mosley Site, is the “ ‘functional equivalent of going through the federal Superfund process with EPA.’ ”

Id.

The Tenth Circuit concluded that “[gjiven the specifies of the EPA pilot program in this case, ... Morrison was entitled to a rebuttable presumption of compliance with the NCP based on the fact that its actions were undertaken pursuant to a consent order with the KDHE.”

Id.

at 1138 .

As in

Morrison,

the City/KDHE Agreement and its Technical Scopes of Work for RI/FS and RD/RA require the KDHE’s oversight and approval of all of the City’s work at the Site. With respect to these Site activities, the court finds that the KDHE has directed, reviewed, commented upon, and approved all work performed by the City pursuant to the City/KDHE Agreement. Defendants do not directly dispute the KDHE’s actions in this regard, nor could they given the extensive interaction between the City and the KDHE. Instead, defendants argue that the City is not entitled to a

Morrison

rebuttable presumption because (1) the Morrison-KDHE agreement is a consent order whereas the City-KDHE agreement is a settlement agreement; (2) the

Morrison

presumption applies only to the unique facts of that case; (3) there are significant factual distinctions between this case and

Morrison

and (4) the City did not claim entitlement to a presumption in the pretrial order.

Defendants first try to distinguish a consent order from a settlement agreement. Defendants cite

United States v. Acton Corp. ex. rel. Vikoa,

131 F.R.D. 431, 436 (D.N.J.1990) for the proposition that “[i]f there had been a consent order in this case, interested parties ... could have intervened and sought relief.” Defendants equate themselves with the “interested parties” in

Acton.

Acton

was a CERCLA case brought by the United States. Several PRPs sought leave to intervene pursuant to 42 U.S.C. § 9613 (i) to oppose a proposed consent

*1083

decree

filed in accordance with 42 U.S.C. § 9622 (d). A consent decree is an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree.

Rufo v. Inmates of Suffolk County Jail,

502 U.S. 367, 378 , 112 S.Ct. 748, 757 , 116 L.Ed.2d 867 (1992). In contrast, the

Morrison

consent order was not entered into pursuant to section 9622(d) and did not provide for, or even contemplate, submission to a court as a judicial decree. Indeed, the settlement agreement in this case contains no provision for enforcement as a judicial decree. Thus,

Acton

(the only decision cited by defendants) has no application to this case.

Morrison

does not discuss the distinction between a consent decree and a consent order, nor a distinction, if one exists, between a consent order and a settlement agreement. Both the

Morrison

consent order and the settlement agreement at issue in this case were entered into with the KDHE pursuant to K.S.A. 65-3453 which uses the words “orders” and “agreements” without differentiating between the two. No evidence was offered through the KDHE witnesses regarding the difference to the KDHE, if any, between a consent order and a settlement agreement. The court concludes, for purposes of the

Morrison

rebuttable presumption, that there is no difference.

Defendants’ second argument is grounded on the following language from the

Morrison

opinion:

We hasten to add that we are not holding that a blanket presumption applies to all private party cleanups of hazardous waste sites undertaken as part of a state deferral program; our conclusion is specific to this program and this case.

Cf. Pub. Serv. Co.,

175 F.3d at 1179 [(10th Cir.1999)] (stating that in considering whether compliance with state orders should result in a presumption of compliance with the NCP, “the proposition may be sustainable under certain circumstances, [but] the facts here permit no such conclusion”). Pilot deferral programs may vary in their specifics across the country, and the EPA may also decide that any national program that it implements may be very different in its specifics, particularly in how it handles the issue of consistency with the NCP. We are wary of making any sweeping conclusions on the issue in light of the EPA’s cautionary language in 1990.

See

NOHSPCP, 55 Fed.Reg. at 8796-97.

Morrison,

302 F.3d at 1138-39 . Defendants’ position is not clearly articulated, but they apparently believe that the Tenth Circuit was signaling that the

Morrison

presumption is unique to that case.

This court disagrees with defendants’ narrow interpretation. The Tenth Circuit panel noted that “[g]iven the specifics of the EPA pilot [deferral] program in this case, we conclude Morrison was entitled to a rebuttable presumption of compliance .... ” The “specifics” of the pilot deferral program require that all activities be consistent with the NCP and include a finding by the EPA that the KDHE’s site investigation and cleanup process are consistent with the requirements of CERCLA and the NCP. The City is part of the same pilot deferral program. Both in

Morrison

and in this case, the KDHE’s involvement has been comprehensive, including the KDHE’s approval of the City’s many proposals regarding clean up of the Site. Although the EPA’s involvement has been “minimal,” it has been no less so than in

Morrison

and there is no evidence that the EPA has rejected or criticized any action by the KDHE or the City as not being consistent with the NCP. On the contrary, the evidence is that the EPA was “on board” with the KDHE throughout the process. The panel’s cautionary admonition regarding application of a “blanket

*1084

presumption” appears to be directed at pilot programs in other states, or at least at different pilot programs. Significantly, other than to cite the panel’s words, defendants make no argument as to why the Tenth Circuit would view this case as so different from

Morrison

that it would refuse to apply the presumption.

Defendants’ third argument — advanced without elaboration — is that the facts in

Morrison

and in this case are different. To be sure, but the factual differences are irrelevant, at least insofar as application of the presumption is concerned.

Defendant’s final argument is that the presumption is not mentioned in the pretrial order. Be that as it may, the City argues for the presumption in its trial brief. Defendants do not claim to be surprised by the argument, nor can they. Defendants are not really prejudiced by the presumption because all of their arguments regarding NCP non-compliance will be considered.

Application of the

Morrison

rebuttable presumption is therefore factually and legally appropriate. The presumption is not, however, irrebuttable. Its effect is to “shift the burden of proving inconsistency with the NCP.”

Wash. State Dep’t of Transp. v. Wash. Natural Gas Co.,

59 F.3d 793 , 796 (9th Cir.1995). Defendants can thus rebut the presumption by demonstrating that the City’s remedy is in fact inconsistent with the NCP.

See Morrison,

302 F.3d at 1139 (noting that defendant could perhaps rebut the presumption- by showing that “the KDHE-approved work-plan. was itself inconsistent with the NCP”).

5. Defendants’ Contentions

Defendants dispute the City’s presumptive NCP compliance on several fronts. Though the court will expressly address defendants’ primary contentions-those set forth mainly by ALT in Doc. 1432-in this Memorandum Decision, defendants asserted other arguments throughout the trial and in their various pleadings that relate to the consistency of the City’s response action with the NCP and which the court does not expressly address here. The court has considered the positions of defendants in their entirety, however, and determines that defendants have failed to rebut the presumption of NCP compliance due the City.

Defendants first contend that the City did not propose monitored natural attenuation as a remedial measure and apparently believe that the City had a duty to do so. They assert that because the City never officially proposed the no action or limited action alternatives discussed in the City’s FS, the KDHE consequently gave the options no credence or consideration. Defendants are correct in part. Jump testified that though “the information [regarding monitored natural attenuation] was presented to. KDHE ... there was never a request for KDHE to consider that [it] change the Corrective Action Decision to monitored natural attenuation.” Contrary to defendants’ assertions, however, the NCP simply requires that “[t]he no-action alternative ... shall be developed,” 40 C.F.R. § 300.430 (e)(6), and does not otherwise place upon the City a burden to advocate for the use of monitored natural attenuation to the exclusion of other remedial alternatives.

Pursuant to § 300.430(e), the City submitted to the KDHE an FS that identified several remedial alternatives, including a “no action” alternative consisting of “no further remedial action.” The FS included a section titled “Detailed Analysis of Interim Remedial Action Alternatives” that further developed the “no action” alternative and a section comparing and summarizing each of the various alternatives presented by the City. The City later presented to

*1085

the KDHE in the 1999 RI/FS Addendum an evaluation of the “bioremediation mechanisms within Plume B,” pursuant to its bio-pilot demonstration study, and concluded that the presence of excessive sulfate in the groundwater inhibits degradation at most locations encompassed by Plume B— a conclusion that undermines the selection of the “no action” alternative as the preferred remedial alternative.

The KDHE ultimately rejected the “no action” alternative in the Final CAD and affirmed its decision in the 2001 ESD. Because the NCP does not require the selection of natural attenuation in all eases but rather requires that a “no action” alternative be developed, and because the City did in fact present such an alternative in the FS, the court finds that the City’s ultimate development of a “no action” remedy was consistent with the NCP.

Defendants next contend that the KDHE’s selection of the pump and treat system over monitored natural attenuation was not consistent with the NCP in that operation of a monitored natural attenuation system

would cost far less and would require less time than will the pump and treat system. Cost-effectiveness is surely an important criterion to be considered in the selection of a remedial alternative. “Cost” itself is a factor to be used in both the initial screening and more detailed screening of remedial alternatives

and the NCP commands that “[ejach remedial action selected shall be cost-effective,” provided that it first is protective of human health and the environment and satisfies ARARs. 40 C.F.R. § 300.430 (f)(l)(ii)(D).

ALT points to the City’s own groundwater modeling to conclude that monitored natural attenuation will achieve target cleanup levels in 50 years as opposed to the 60 to 70 years required by the pump and treat remedy. The City concluded in its 1999 RI/FS addendum, however, that monitored natural attenuation will require 130 years to treat the groundwater to desired levels due to various conditions at the Site which inhibit complete degradation of chlorinated solvents,

and that monitored natural attenuation will do so at a greater cost than will be required by the pump and treat system.

Though the parties argue, at length about the extent to which one alternative is more effective and less costly than another, the court is largely left with deter

*1086

minations of credibility and generally views the conclusions reached by the City in this matter to be most credible. It indeed defies logic that a monitored natural attenuation alternative, whereby chlorinated solvents are left to degrade naturally, will actually require less time to restore groundwater to target levels than will a pump and treat system that, in addition to affirmatively removing chlorinated solvents via downgradient pumping, will also take advantage of any natural degradation tendencies. Apart from the cost/time dispute, however, the EPA’s expectations with respect to the selection of a remedy undermine any use of monitored natural attenuation as a remedy at the Site.

The EPA “expects to prevent further migration of the plume, prevent exposure to the contaminated ground water, and evaluate further risk reduction.” 40 C.F.R. § 300.430 (a)(l)(iii)(F). To that end, defendants claim that the Arkansas River prevents further migration of contamination because the “plumes harmlessly enter the Arkansas River.” The river may in fact provide a natural barrier to the migration of Plume B beyond its borders and thus may prevent the endangerment of various public water supply wells south of the river. But the City expressed doubts about the “no action” and “limited action” alternatives because, as. stated in the FS, neither alternative truly “limit[s] migration of or remove[s] contaminants.” The City further stated more plainly in its 1999 RI/FS addendum that “during the long period before ACLs are achieved, the groundwater flow modeling indicates that Plumes A and B will continue to expand and Plumes A and E will discharge contaminants to surface water, the Arkansas River.”

The KDHE ultimately rejected the “no action” and “limited action” alternatives on this basis. It stated in the Final CAD that the “no action” and “limited action” alternatives “[do] not stop migration of contaminants.” Jump, who had ultimate authority over KDHE approval of the remedy, testified that she does not believe the KDHE would have accepted monitored natural attenuation if it had been proposed as an addendum to the CAD. Responding to an inquiry at trial by the City’s counsel about the reasons for her belief, Jump stated,

Because the data showed that there was continued migration and because the CAD, the intent of the CAD was to contain the plumes, not allow continued migration. I had told CDM that we could change the alternatives but we would not change the intent of the CAD. And also because in a meeting with the EPA and Coleman and the City of Wichita the, EPA said get on containment, things are continuing to move, proceed with containment. If you want to consider other alternatives, you can consider ‘em after you get containment on the plumes.

Because the NCP includes the protection of the environment among its threshold criteria for selecting a remedy, and furthermore because the EPA expects containment, at least in cases where returning usable groundwater to its beneficial use is not practicable, the court does not think it consistent with the NCP to select a remedy that allows contaminant flow into the river and away from the Site if another remedy will truly contain the contamination and compares favorably based on the NCP’s selection criteria.

ALT next claims that an actual threat to human health or the environment must exist in order for the City’s response action to be consistent with the NCP.

See G.J. Leasing Co., Inc. v. Union Elec. Co.,

854 F.Supp. 539, 561-62 (S.D.Ill.1994) (“In order to show that any response costs were necessary under CERCLA, plaintiffs

*1087

must demonstrate they responded to a threat to public health or the environment.”)- ALT specifically contends that no remediation is necessary because exposure pathways to humans exist only hypothetically. ALT further notes that the City’s drinking water sources are upgra-dient to the Site, that the City itself has proclaimed that its water is safe, and that the RI specifically states that “[c]urrent exposures to residents are expected to be small to nonexistent, because current groundwater exposure pathways are incomplete. No significant ongoing exposures exist for current Wichita residents.”

ALT cites

Bethlehem Iron Works, Inc. v. Lewis Indus., Inc.,

1996 WL 557592 (E.D.Pa. Oct.1, 1996), and

Southfund Partners III v. Sears, Roebuck and Co.,

57 F.Supp.2d 1369 (N.D.Ga.1999), in support of its contention that the pump and treat system was not developed in response to a threat to human health or the environment. But the court in

Bethlehem

found it “most important ]” that the plaintiff failed to conduct a risk assessment study,

Bethlehem,

1996 WL 557592 , at *53, and the

Southfund

court stated that “Southfund has produced absolutely no evidence to suggest it posed any threat to the environment or public health.”

Southfund,

57 F.Supp.2d at 1379 . Here, however, far from an absolute lack of evidence, the City conducted an extensive Baseline Risk Assessment, pursuant to 40 C.F.R. § 300.430 (d)(4), to “assess both existing environmental and human health risks by performing a no action alternative or baseline analysis, as well as potential risks associated with proposed remedial alternatives.”

Taking into account an assumption that most human exposure pathways are incomplete and might remain so, the City in its Risk Assessment combined chemical intake rates for various exposure scenarios with an assessment of the toxicity of the contaminants at the Site to conclude that cancer risks at the Site exceed 1x10 to 1x10 -6, the risk range deemed acceptable by the EPA.

See

40 C.F.R. § 300.430 (e)(2)(i)(A)(2) (“For known or suspected carcinogens, acceptable exposure levels are generally concentration levels that represent an excess upper bound lifetime cancer risk to an individual of between 10 -4 and 10 -6 using information on the relationship between the dose and response.”). The City also identified over 400 water supply wells within a one-mile radius of the Site, including over 70 registered lawn and garden wells within the Site itself. The KDHE consequently determined that the contaminant level in the groundwater at the Site posed a human health risk.

Based on its independent review of the evidence, the court agrees. The court finds the Baseline Risk Assessment to be an accurate reflection of the risks in existence at the Site and determines that there is at least a potential risk to human health and the environment due to the contaminant level within the Site’s groundwater.

See United States v. Burlington N. R.R.,

200 F.3d 679, 684 (10th Cir.1999) (“Thus, the Risk Assessment has the specific purpose of providing a baseline snapshot of the

potential

risks, assuming that no remedial action has been taken.”) (emphasis added). The court thus rules that the City’s identification of potential risks and selection of the pump and treat system to effectively eliminate or reduce those risks satisfies the substantial compliance standard applicable to the City’s selection of a remedial alternative.

See

40 C.F.R. § 300.430 (a)(1) (“The purpose of the remedy selection pro

*1088

cess is to implement remedies that eliminate, reduce, or control risks to human health and the environment.”).

ALT additionally alleges that the City’s extraction of the Site’s groundwater will be detrimental to human health and the environment. The potential for further detriment to human health is certainly a factor to be considered when choosing among vai’ious remedial alternatives.

see also

40 C.F.R. § 300.700 (c)(3)-(4) (consistently discussing whether a “response action” is consistent with the NCP, and not whether particular costs are consistent with the NCP). Having already concluded that the City’s response action has thus far been consistent with the NCP, the court will now proceed to determine whether the City’s costs were necessary to fulfill the response action.

Necessary costs are those costs that are “necessary to the containment and cleanup of hazardous releases.”

Hardage,

982 F.2d at 1448 . Necessary costs include not only the cost of actual cleanup, but also include costs for investigation, planning, and remedial design.

See Bancamerica Commercial Corp. v. Trinity Indus.,

900 F.Supp. 1427, 1460 (D.Kan.1995),

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

100 F.3d 792 (10th Cir.1996). “[C]ourts will deny recovery where the costs incurred were duplicative of other costs, wasteful, or otherwise unnecessary to address the hazardous substances at issue.”

Waste Mgmt. of Alameda County,

*1092

Inc. v. East Bay Reg’l Park Dist.,

135 F.Supp.2d 1071, 1099 (N.D.Cal.2001) (citing

Lansford-Coaldale Joint Water Auth. v. Tonolli Corp.,

4 F.3d 1209, 1219 (3rd. Cir.1993);

United States v. Iron Mountain Mines, Inc.,

987 F.Supp. 1263, 1272 (E.D.Cal.1997);

Northwestern Mut. Life Ins. Co. v. Atl. Research Corp.,

847 F.Supp. 389, 401 (E.D.Va.1994);

Cent. Me. Power Co. v. F.J. O’Connor Co.,

838 F.Supp. 641, 648-49 (D.Me.1993)). Nonetheless, mere redundancy of limited activities will not automatically render a cost unrecoverable.

See Trinity Indus.,

900 F.Supp. at 1460 .

1. CDM Costs

The lion’s share of costs incurred by the City went to the environmental consulting firm of CDM. This is because the City essentially hired CDM to perform a turnkey job for the Site cleanup. CDM provided its own environmental consulting and engineering expertise. CDM also hired subcontractors and purchased equipment on behalf of the City. While some subcontractors were hired and paid directly by the City, most of the work was handled through CDM. Overall, CDM charged the City $10,254,210.36 as of June 15, 2002.

As evidence of these costs, the City points to CDM’s periodic invoices. ALT attacks these charges as being insufficiently documented. On the contrary, each invoice includes simple descriptions of the task being completed, as well as some indication of whether the charges are for labor or other direct expense. City expert Dennis Faulkner testified that all the money paid to CDM was properly supported by invoices and related documents.

Moreover, City Environmental Director Jack Brown testified that all the invoices were directed to him, and that he assigned his subordinates to perform a detailed review of each invoice to confirm that the City was being billed properly. One of Brown’s subordinates, Brian Fisher, also testified at trial. His testimony revealed that he worked extensively with CDM personnel doing field work within the Site. The evidence showed that Fisher was also called upon to review a large portion of the CDM bills. Defendants failed to ask Fisher anything substantive regarding how he reviewed the CDM invoices. Accordingly, Brown’s testimony that a review was performed is accepted as true.

The EPA has provided the following guidance on documenting response actions in order to support cost recovery:

During all phases of response, the lead agency shall complete and maintain documentation to support all actions taken under the NCP and to form the basis for cost recovery. In general, documentation shall be sufficient to provide the source and circumstances of the release, the identity of responsible parties, the response action taken, accurate account

*1093

ing of federal, state, or private party-costs incurred for response actions, and impacts and potential impacts to the public health and welfare and the environment.

40 C.F.R. § 300.160 (a)(1). While the language of this section indicates that it applies to government cost recovery actions, 40 C.F.R. § 300.700 (c)(5)(ii) states that this provision may also be applicable to private party actions, as is the case here.

United States v. W.R. Grace & Co.-Conn.,

280 F.Supp.2d 1149 (D.Mont.2003), the district court conducted an extremely thorough examination of CERCLA’s documentation requirements in support of a cost recovery action.

See id.

at 1179-83 . In evaluating 40 C.F.R. § 300.160 (a)(1),

Grace

stated “[tjhis provision does not establish prescriptive standards for the content of cost documents,” and that the NCP “does not contain any specific standards concerning the documentation of costs.”

Grace,

280 F.Supp.2d at 1179-80 (quotations omitted).

Grace

concluded that courts had consistently required that costs be proven by a preponderance of the evidence, and that detailed cost summaries, vendor invoices, payment vouchers, and contractor bills provided sufficient proof. The court finds the analysis in

Grace

to be persuasive, and need not repeat it here. CDM’s bills are documented on numerous multi-page invoices that sufficiently describe the work being billed. Jack Brown’s testimony shows that the bills were reviewed by City personnel for accuracy and consistency with the underlying contract. Defendants had ample opportunity in discovery and at trial to show that CDM’s bills were inappropriate, unnecessary, or outright fraudulent; however, no such proof was offered. The court finds that CDM’s costs were sufficiently documented and are necessary costs of response at the Site.

In reviewing the invoices that support CDM’s charges, the court finds that $218,591.79 was for site work at the City’s Bus Barn over the years 1997-1999. The Bus Barn project was essentially source control work to remove the contaminated soils found there. Upon further review, the court notes that the City has already deducted $93,794 of these charges, classifying them as unrecoverable remediation for petroleum contaminated soils. That leaves $124,797.79 of the $218,591.79 still unaccounted for. Thus, of the $10,254,210.36 in CDM charges that the court finds were necessary costs, $124,797.79 was for non-petroleum related source control work at the City’s Bus Barn, and the remaining $10,129,412.57 was for other response work at the Site.

2. KDHE Costs

The City also paid the KDHE $277,648.65. These costs reflect charges for KDHE oversight and participation in the Gilbert and Mosley project, as well as various laboratory and analytical charges incurred by the agency. The KDHE’s charges are documented in numerous invoices dating back to 1991. Most of the invoices provide summaries of the costs incurred, including a breakdown of labor charges and analytical work. Although these invoices are not as detailed as the CDM bills, the court finds that the KDHE invoices are sufficient to support the City’s claimed costs. Faulkner’s review indicates that the City’s payments to the KDHE are properly supported by invoices and records of payment. Defendants provided no evidence that any of the charges were false or unsupportable.

Costs for government oversight of private-party remedial actions are recoverable under CERCLA § 113(f).

See Atl. Richfield Co. v. Am. Airlines, Inc.,

98 F.3d 564 , 569-70 (10th Cir.1996). The record is

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replete with evidence that the KDHE’s role was to provide oversight for the City’s work at the Site. Accordingly, the KDHE charges are necessary costs of response at the Site, and are fully recoverable.

3. Miscellaneous Vendor Costs

Next, the City paid $350,362.11 to various vendors which billed the City directly. This total is comprised of $46,105.95 from Continental Analytical Services for laboratory work analyzing samples from the Site; $56,013.91 from Cornejo & Sons, Inc. for what appears to be construction-type work; $32,213.93 from Geoprobe Systems for geoprobing tools; $179,091.54 from Haz-Mat Response, Inc. for source control work at the City’s Bus Barn; and $36,936.78 from other vendors who each received less than $5,000. The court will address each of these costs in turn.

First, the City seeks recovery of $46,105.95 from Continental Analytical Services. These costs are adequately documented by invoices and log sheets showing the locations from which samples were taken. Faulkner’s testimony further supports that these costs are adequately documented. The court also finds that these costs are necessary costs of response in that they provided laboratory measurements of the amount of contamination in soils and groundwater at the Site. However, of these charges, $34,303.60 is for source control measures at the City’s Bus Barn. That leaves $11,802.35 of Continental’s charges that are related to other aspects of the Gilbert and Mosley project.

Next, the City claims $56,013.91 in costs from Cornejo & Sons, Inc. All these costs were paid in 2002, and are reflected in plaintiffs exhibit P-2492. After a mind-numbing review of the 1,384 pages of documents that comprise P-2492, the court fails to find a sufficiently documented connection between these costs and the Gilbert and Mosley project. Cornejo appears to have done a great deal of work for the City. Indeed, several of the documents in P-2492 show that Cornejo billed the City over $100,000 for its work in 2001 and 2002. The problem arises in determining how much of that work amounts to response costs. Cornejo performs, among other things, construction work. The types of services provided by Cornejo may be useful to any number of City projects. Unfortunately, the documents that appear to be Cornejo invoices indicate nothing more than that work was done for the health department. There is no mention of Gilbert and Mosley on any of the bills. Thus, the court has no means to determine that certain charges are for work at the Site, while others are not. Trial testimony was equally unenlightening. A review of the trial transcript shows that the word Cornejo was spoken only once at trial, and it had nothing to do with these charges. Apparently, Faulkner was able to make the connection between the costs alleged here and the Gilbert and Mosley project, although he did not explain how he did so. The court cannot. Plaintiff has failed to meet its burden of proving that these were response costs related to the Site; therefore, no recovery will be permitted for the Cornejo & Sons, Inc. charges.

The City also claims $32,213.93 in costs from Geoprobe Systems for the purchase of a geoprobe and supporting equipment. After reviewing the invoices and related paperwork, along with Faulkner’s testimony, the court finds that these expenses are adequately documented. The geoprobe was clearly instrumental in source identification and sampling within the Site, and is therefore a necessary cost of response. On the other hand, the court notes that tools like this are useful at other contamination sites. In fact, trial testimony showed that the City’s geoprobe was also used to investigate another site with contaminated groundwater, the Northern In

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dustrial Corridor. Likewise, such a tool may be useful at other locations in the city. Accordingly, the court finds that approximately one-third of the costs associated with the geoprobe should be assigned to the Site, and will therefore recognize $11,000 in payments to Geoprobe Systems as costs eligible for recovery in this case.

Next, the City seeks contribution for $179,091.54 in costs from Haz-Mat Response, Inc. This charge is supported by invoices and minutes from a Wichita City Council meeting. A review of the documentation supporting this cost shows that it is for removal of contaminated soils at the City’s Bus Barn — in other words, this work is for source control at the Bus Barn. Since the Bus Barn is a source of contamination at the Site, this cost is a necessary cost of response.

Finally, the City seeks recovery based on $36,936.78 in costs from other vendors, which each received less than $5,000. Due to the relatively small charges and large numbers of vendors in this category, the City did not present these charges on a vendor-by-vendor basis. Nonetheless, the City submitted 4,630 pages of documents supporting its costs, which were replete with invoices, receipts, and supporting documentation for these charges. Combining this evidence with Faulkner’s testimony, the court concludes that these charges are adequately documented, and relate to Site response actions. They are therefore necessary costs of response, and will be recoverable costs in this action.

In sum, the City claims $350,362.11 in response costs from various vendors. Of that, $213,395.14 is potentially recoverable as response costs incurred for source control measures at the City’s Bus Barn, and $59,739.13 is potentially recoverable as response costs for other Site activities.

4. Stinson, Mag & Fizzell Costs

The City paid $205,047.78 to the law firm of Stinson, Mag

Fizzell for work related to the Gilbert and Mosley project. The invoices for those charges indicate that all the work billed was for PRP identification. Although litigation costs related to the City’s lawsuit would not normally be recoverable under CERCLA, attorney’s fees related to PRP identification are recoverable.

Key Tronic,

511 U.S. at 819-20 , 114 S.Ct. at 1967 . Faulkner testified that many other charges from Stinson were excluded from the response costs the City seeks here because they

are

litigation costs. The court finds that these costs are sufficiently documented and are necessary response costs.

5. City Payroll Costs

Next, the City seeks $738,611.56 as part of its payroll burden for City employees who worked on the Site. ALT attacks these costs on the grounds that most of these people were already employed by the City, and their salaries would have been necessary without regard to the groundwater pollution problem. Despite this fact, any salary and benefits paid to these employees for work they did on the Gilbert and Mosley project was money spent in accomplishing the response action. ALT’s argument would allow the City to recover payroll burden for any new-hires, as well as for any costs of outsourcing the work, but would bar recovery if the City used existing workers

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.