# Appendices — Advance Chemical Co. v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1017%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendices
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 913

## Text

ae

la

APPENDIX A

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

No. 90-6325

UNITED STATES OF AMERICA,
Plaintiff-A ppellee,
V.

RoyAL N. HARDAGE; Special Master; OKLAHOMA Na-
TIONAL STOCKYARDS COMPANY; Joc OIL; DAL-WorTH,
INDUSTRIES; DouBLE EAGLE; SAMUEL BISHKIN, Doing
Business as Eltex Chemical; L & S BEARING COMPANY;
KERR-MCGEE CORPORATION; CATO OIL; POWELL
SANITATION SERVICE, INC.; LOWE CHEMICAL; MOon-
SANTO; TEXTRON INC.,

Defendants.

UNITED STATES POLLUTION CONTROL,
Defendant-A ppellee,

V.

HARDAGE STEERING COMMITTEE; ADVANCE CHEMICAL
COMPANY; ALLIED-SIGNAL, INC.; AMERICAN TELE-
PHONE & TELEGRAPH COMPANY; ASHLAND OIL INC.;
ATLANTIC RICHFIELD COMPANY; BORG-WARNER Cor:
PORATION; BRIDGESTONE/FIRESTONE, INC., Formerly
Known as the FIRESTONE TIRE & RUBBER COMPANY;
BULL HN INFORMATION, Formerly HONEYWELL BULL
INc.; EXXON CORPORATION; GENCORP INC., (DIVERSI-
TECH GENERAL); MAGNETIC PERIPHERALS, INC.; MARE-
MONT CORPORATION; MCDONNELL-DOUGLAS Corpo-
RATION; MOBIL ~HEMICAL COMPANY: NALCO CHEMI-

2a

CAL COMPANY; OKLAHOMA GAS AND ELECTRIC CoM-
PANY; THE OKLAHOMA PUBLISHING COMPANY; ROCK-
WELL INTERNATIONAL CORPORATION, Formerly Known
as, NORTH AMERICAN ROCKWELL; TEXACO REFINING
AND MARKETING, INC.; TEXAS INSTRUMENTS INCORPO-
RATED; UOP INnc.; UNIROYAL INC.; WESTINGHOUSE
ELECTRIC CORPORATION; WEYERHAEUSER,
Third-party-
defendants-A ppellants,

A.H. BELO, Doing Business as
DALLAS MORNING NEws,
Third-party-
defendant-A ppellee,

AMERICAN AIRLINES, INC.; BAXTER HEALTH CARE

Corp., Doing Business as PHARMASEAL LABORATORIES;
BENJAMIN Moore & COMPANY; BoB McBroom, Do-
ing Business as AMERICAN FURNITURE STRIPPING;
BROWN & Root, INC.; BROWNING-FERRIS, INC., For-
merly Known as CoLT INDusTRIES INC., Doing Busi-
ness as HOLLY SPECIALTY PRODUCTS; CONTINENTAL
INDUSTRIES INC.; CROWN INDUSTRIES, Also Known as
CROWN TRANSPORT Co. (GEO INTERNATIONAL); DE-
soTo, INC.; DELUXE CORPORATION, Doing Business as
DELUXE CHECK PRINTERS, INC.; DIFFEE Motor Co.,
INC.; ENGINEERING ENTERPRISES, INC.; First Na-
TIONAL MANAGEMENT, Also Known as FIRST OKLA-
HOMA Corp., Formerly Known as First OKLAHOMA
BANCORP, INC.; FRUEHAUF CORPORATION (Hosss &
KELSEY HAYES DIVISIONS); HALLIBURTON SERVICES,
a DIVISION OF HALLIBURTON COMPANY; INTERSTATE
TRUCK REPAIR; MACLANBURG-DUNCAN COMPANY;
MCALESTER PUBLIC SCHOOLS; OK GRAPHICS; OKLA-
HOMA NATURAL GAS COMPANY; PRESBYTERIAN Hos-
PITAL, INC. Doing Business as PRESBYTERIAN HEALTH
FOUNDATION; SAFETY-KLEEN CORPORATION; SHAKLEE
CORPORATION; SOONER FORD; SOUTHWESTERN STEEL
ROLLING Door COMPANY; the ARGICULTURE & Nu-

3a

TRITION COMPANY; THOMAS & BETTS CORPORATION;
UNISYS CORPORATION, Formerly Known as SPERRY
CORPORATION, Doing Business as SPERRY-VICKERS; the
UNIVERSITY OF OKLAHOMA: W.O.L. CORPORATION,
also Known as WOLVERINE PIPE; WEBCO INDUSTRIES,
INc., Doing Business as SouUTHWEST TUBE MANUFAC-
TURING COMPANY; WELCH ENTERPRISES, INC., also
Known as WELCH OIL,
Fourth Party
Defendants-A ppellants.

Dec. 21, 1992

Terry W. Schackmann of Spencer Fane Britt & Browne.
Kansas City, MO (Jerome T. Wolf, Carl H. Helmstetter,
Spencer Fane Britt & Browne, Jeffrey N. Martin, Hunton
& Williams, Washington, DC, Kenneth N. McKinney,
Robert D. Tomlinson, Robert L. Roark, McKinney,
Stringer & Webster, Oklahoma City, OK, with him on the
brief), for Hardage Steering Committee, et al.

John T. Stahr, Atty., Environmental and Natural Re-
sources Div., Dept. of Justice, Washington, DC (Richard
B. Stewart, Asst. Atty. Gen., David C. Shilton, Steven
Novick, Gary §. Guzy, Attys., Environmental and Nat-
ural Resources Div., Dept. of Justice, Washington, DC,
Charles De Saillan, Atty., Office of Enforcement, E.P.A.,
Washington, DC with him on the brief), for U.S.

Before TACHA, and BALDOCK, Circuit Judges, and
BROWN, District Judge. *

BALDOCK, Circuit Judge.

——

*The Honorable Wesley E. Brown, Senior United States Dis-
trict Judge for the District of Kansas, sitting by designation,

4a

This case arises from the cleanup effort at the Hard-
age Superfund Site (Hardage site), a federally controlled
Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA) site near Criner, Okla-
homa. CERCLA § 101 et seqg., 42 U.S.C. § 9601 et seq.
Third-party-defendants Hardage Steering Committee, et
al (HSC) appeal from the district court’s December 8,
1989 order granting, in part, the United States’ motion
for partial summary judgment and declaratory judgment
on response cost issues, United States v. Hardage, 733
F.Supp. 1424 (W.D.Okla.1989), and the district court’s
August 9, 1990 order entering Findings of Fact and Con-
clusions of Law for Remedy Selection Phase, United
States v. Hardage, 750 F.Supp. 1460 (W.D.Okla.1990).

In 1986, the government filed this action against thirty-
two generators and three transporters seeking injunctive
relief under CERCLA § 106(a), 42 U.S.C. § 9606(a),
to require them to clean up the Hardage site, and to re-
cover costs incurred by the government under CERCLA
§ 107(a)(4)(A), 42 U.S.C. § 9607(a)(4)(A). Most
of these original defendants organized themselves as HSC
defendants. HSC stipulated to liability for the presence
of toxic waste at the Hardage site. The district court bi-
furcated the case into a remedy phase, at which a remedy
for the cleanup of the Hardage site would be selected,
and a liability phase, at which liability for the cleanup
would be determined for those who did not stipulate to
liability. Prior to the remedy phase of the trial, the gov-
ernment moved for partial summary judgment against
HSC to recover response costs it incurred at the Hardage
site. The district court granted the government’s motion
for all direct response costs and denied summary judg-
ment for the government’s indirect response costs. At the
same time, the court granted the government’s request for
a declaratory judgment that HSC was liable for all of
the government’s future response costs. The district court
entered this order prior to the commencement of the
remedy phase of the trial.

Sa

At the remedy phase of the trial, the government and
HSC presented the court with competing remedies. The
court ultimately rejected the government’s remedy and
ordered implementation of HSC’s remedy, with minor
modifications. At the remedy phase the court also
awarded the government its indirect response costs and
additional direct response costs against HSC. The court
awarded HSC only a portion of the response costs it
counter-claimed against the government as a4 responsible
party.’

HSC appeals the district court’s entry of partial sum-
mary judgment for the government on two grounds.
First, HSC contends that the court erred in granting par-
tial summary judgment, holding it liable for the govern-
ment’s direct response costs, because of the existence of
genuine issues of material fact. Second, HSC contends
that summary judgment should be reversed because the
court ultimately determined, during the remedy phase of
the trial, that the government’s trial remedy was incon-
sistent with the National Contingency Plan (NCP). HSC
also contends that the declaratory judgment in favor of
the government, holding that HSC is liable for all future
government response costs, must be reversed because it
does not allow HSC to contest these response costs as
inconsistent with the NCP. Lastly, HSC appeals the dis-
trict court’s denial of certain HSC response costs, claim-
ing that the court erroneously applied CERCLA § 122
(e)(6), 42 U.S.C. § 9622(e)(6), to its claim for costs,
and that the court disallowed certain HSC response costs
based on the erroneous presumption that private parties
may not recover litigation-related response costs. All
issues have been certified under Fed.R.Civ.P. 54(b) for
interlocutory review, and we exercise jurisdiction pursuant
to 28 U.S.C. § 1291.

1The government stipulated to liability for the disposal of ap-
proximately 920,000 gallons of hazardous substances at the Hardage
site.

6a

I. BACKGROUND

Defendant Royal N. Hardage owned and operated the
Hardage waste disposal site. The site operated from Sep-
tember 1972 until November 1980, receiving more than
twenty million gallons of waste for storage and/or dis-
posal. In 1979, the Environmental Protection Agency
(EPA) investigated and inspected the site and concluded
that the site posed a threat to the public health, welfare,
and environment. In September 1980, the United States
Department of Justice (DOJ) filed suit in United States
v. Hardage, No. CIV-80-1031-W (W.D.Okla. filed Sept.
8, 1980) [hereinafter Hardage I] against Mr. Hardage,
the site owner.

In Hardage I, the court found that the Hardage site
was dangerous and determined that Mr. Hardage was
liable under the Resource Conservation and Recovery Act
§ 7003, 42 U.S.C. § 6973, and CERCLA § 106, 42
U.S.C. § 9606. The court also awarded the government
partial judgment for its response costs incurred through
December 1982. The government was unable to obtain
payment from Mr. Hardage, however, because he filed for
bankruptcy and received a discharge of indebtedness in
June 1985. Thereafter, the government identified nu-
merous other parties responsible for the contamination of
the site, and notified them of their status as Potentially
Responsible Parties (PRP’s) pursuant to CERCLA § 104,
42 U.S.C. § 9604. In June 1986, the government filed
the instant action, United States v. Hardage, No. CIV-86-
1401-P (W.D.Okla. filed June 25, 1986) [hereinafter
Hardage II\ against the identified PRP’s, the majority of
whom ultimately formed HSC, to require them to clean ~
up the Hardage site, and to recover response costs in-
curred by the government.

Throughout the proceedings in Hardage I and prior to
the remedy phase of Hardage II, the EPA continued to
investigate and study the Hardage site to develop an
appropriate remedy, eventually settling on the remedy it

| |

Ta

presented at trial. Beginning in 1986, HSC also became
involved with the cleanup of the site, instituting interim
remedial measures as well as developing its own perma-
nent remedy for the Hardage site. At the remedy phase
trial of Hardage II, the court considered both the govern-
ment’s proposed remedy and HSC’s remedy, and after de-
termining that the HSC remedy was Superior, the court
ordered HSC’s remedy to be implemented with minor
modifications. Although the court conducted a de novo
review of the competing remedies, it stated that had it
limited its review to EPA’s administrative record, it would
have rejected the government’s remedy as arbitrary, capri-
cious, and an abuse of discretion. Finally, the court
found that the government’s excavation component of its
remedy did not satisfy NCP standards.?

If. PARTIAL SUMMARY JUDGMENT

HSC contends that the district court erred in granting
the government’s motion for partial Summary judgment

*The rejected government remedy involves excavation of haz-
ardous wastes in addition to soil vapor extraction, which is a re-
medial measure designed to remove volatile organic compounds
from soil and to transfer them to the airstream. The HSC remedy
involves contaiiiment of hazardous wastes at the Hardage site by
controlling surface water pathways, preventing direct human con-
tract with wastes, controlling air emissions from the site, pre-
cluding the use of contaminated groundwater, and providing for a
contingent response plan to ensure continued maintenance of the
site. The court adopted HSC’s remedy finding that it was supported
by adequate data and analysis, was more cost-effective than the
government’s remedy, was feasible, posed little risk of adverse
effects to workers, and best mitigated and minimized threats to
the public health, welfare, and environment. The court rejected
the government’s remedy finding that, because the remedy was
developed without adequate deliberation and consideration, it could
ultimately fail and lead to future remedial action costs. The court
also found that the government’s remedy potentially threatened
human health and the environment, and cost substantially more
than HSC’s remedy without any demonstrable benefit to the public
health, welfare, or environment. The court also noted that the
State of Oklahoma opposed the government’s remedy.

8a

for response costs because HSC established the existence
of genuine issues of material fact. This argument has two
components: (1) HSC claims that its expert affidavits
raised a genuine issue of material fact that the govern-
ment’s response costs were excessive and unreasonable
and therefore unrecoverable, and (2) HSC claims that
the court erroneously rejected, as conclusory, its expert
affidavits relating to whether the government’s costs were
in fact incurred at the Hardage site. HSC also contends
that we should reverse the entry of summary judgment in
favor of the government in light of the district court’s
subsequent trial determination that the excavation com-
ponent of the government’s remedy is inconsistent with
the NCP. We review a district court’s order granting
summary judgmeiit de novo, Applied Genetics Int'l, Inc.
v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th
Cir.1990).

Section 107(a) of CERCLA imposes liability on four
categories of persons, including owners and operators of
hazardous waste sites, and generators and transporters of
hazardous waste, for costs including:

(A) all costs of removal or remedial action incurred
by the United States Government or a State or an
Indian tribe not inconsistent with the national con-
tingency plan;

Id. § 107(a) (4) (A), 42 U.S.C. § 9607(a) (4) (A). This
section authorizes the government to recover all costs of
removal or remedial response actions, incurred not incon-
sistent with the NCP. United States v. R.W. Meyer, Inc.,
889 F.2d 1497, 1500 (6th Cir.1989), cert. denied, 494
U.S. 1057, 110 S.Ct. 1527, 108 L.Ed.2d 767 (1990).

CERCLA defines remove or removal as follows:

The terms “remove” or “removal” means [sic] the
cleanup or removal of released hazardous substances
from the environment, such actions as may be neces-

9a

sary [sic] taken in the event of the threat of release
of hazardous substances into the environment, such
actions as may be necessary to monitor, assess, and
evaluate the release or threat of release of hazardous
substances, the disposal of removed material, or the
taking of such other actions as may be necessary to
prevent, minimize, or mitigate damage to the public
health or welfare or to the environment, which may
otherwise result from a release or threat of release.
The term includes, in addition, wthout being limited
to . . . action taken under section 9604(b) of this
title ....

CERCLA § 101(23), 42 U.S.C. § 9601(23) (footnote
omitted). The § 9604(b) authorized action, referenced
in the above definition, includes:

such planning, legal, fiscal, economic, engineering,
architectural, and other studies or investigations as
[the President] may deem necessary or appropriate
to plan and direct response actions, to recover the
costs thereof, and to enforce the provisions of this
chapter.

CERCLA § 104(b), 42 U.S.C. § 9604(b).

CERCLA goes on to define remedy or remedial action
as follows:

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

CERCLA § 101(24), 42 U.S.C. § 9601(24).

10a

Finally, CERCLA defines respond or response actions
as “remove, removal, remedy, and remedial action, all
such terms (including the terms ‘removal’ and ‘remedial
action’) include enforcement activities related thereto.”
CERCLA § 101(25), 42 U.S.C. § 9601(25).

As stated above, defendants found liable must pay “all
costs of removal or remedial action incurred by the
United States Government . . . not inconsistent with the
national contingency plan.” CERCLA § 107(a)(4)(A),
42 US.C. § 9607(a)(4)(A) (emphasis added). The
NCP was promulgated pursuant to CERCLA § 105, 42
U.S.C. § 9605, and is the EPA regulation that establishes
procedures for selection of response actions. See 40
C.F.R. pt. 300 (1989).° If the government’s response
actions are in harmony with the NCP, the costs incurred
pursuant to those actions are recoverable from liable
parties. We have not previously addressed the issue of
who has the burden of showing consistency or inconsis-
tency with the NCP when the government is seeking re-
sponse costs, however, we are guided by the Eighth Cir-
cuit’s approach in United States v. Northeastern Pharma-
ceutical & Chemical Co. (NEPACCO), 810 F.2d 726
(8th Cir.1986), cert. denied, 484 U.S. 848, 108 S.Ct.
146, 98 L.Ed.2d 102 (1987).

First, we adopt the Eighth Circuit’s holding that the
burden of proof of inconsistency with the NCP rests with
the defendant when the government seeks recovery of its
costs. Id. at 747. Accord R.W. Meyer, Inc., 889 F.2d
at 1508. As the Eighth Circuit reasoned, CERCLA
§ 107(a)(4)(A) provides that the federal government
can recover “all costs of removal or remedial action. . .
not inconsistent with the NCP.” NEPACCO, 810 F.2d
at 747 (quoting CERCLA § 107(a)(4)(A), 42 U.S.C.
§ 9607(a)(4)(A)). By contrast, CERCLA § 107(a)
(4)(B), 42 U.S.C. § 9607(a) (4) (B), provides that “any

3 The 1989 NCP is relevant to this appeal.

lla

other person” can recover “any other necessary costs of
response . . . consistent with the [NCP].” Jd. (quoting
CERCLA § 107(a)(4)(B), 42 US.C. § 9607 (a) (4)
(B)). This statutory language indicates that Congress
intended that a different standard apply to parties other
than the federal government seeking response costs, and
that these parties affirmatively prove that their actions
are necessary and consistent with the NCP. See id. When
the government is seeking response costs, however, con-
Sistency with the NCP is presumed unless the defendant
can overcome this presumption by presenting evidence
of inconsistency. Jd.

We further are guided by the Eighth Circuit’s approach
concerning what a defendant must show in order to dem-
onstrate that the government’s costs are incurred incon-
sistent with the NCP. In order to show that a govern-
ment response cost is inconsistent with the NCP, a de-
fendant must demonstrate that the government’s response
action giving rise to the particular cost is inconsistent
with the NCP. See NEPACCO, 810 F.2d at 748. To
Show that the government’s response action is inconsist-
ent with the NCP, a defendant must demonstrate that the
EPA acted arbitrarily and capriciously in choosing a par-
ticular response action to respond to a hazardous waste
site. Id. We adopt the arbitrary and Capricious standard
of review “because determining the appropriate removal
and remedial action involves specialized knowledge and
expertise, [and therefore] the choice of a particular clean-
up method is a matter within the discretion of the EPA.”
Id. We follow the Eighth Circuit’s lead and give defer-
ence to the EPA’s choice of response action and will
not substitute our own judgment for that of the EPA.
See id.

This case differs from NEPACCO, however, in that
the recoverability of certain government response costs
was determined on the government’s motion for sum-
mary judgment. Further, the entry of summary judgment
occurred prior to the trial on the issue of the appropriate

12a

remedy for the Hardage site. We now turn to whether
the government was entitled to summary judgment on the
issue of HSC’s liability for the government’s response costs
under CERCLA § 107(a)(4)(A).

Summary judgment is appropriate when there is no
genuine dispute over a material fact and the moving party
is entitled to judgment as a matter of law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505,
2509, 91 L.Ed.2d 202 (1986). The moving party carries
the initial burden of demonstrating the absence of a gen-
uine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265
(1986). Once the moving party meets this burden, the
burden then shifts to the nonmoving party to demonstrate
“the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof
at trial.” Jd. at 322, 106 S.Ct. at 2552. “By its very
terms, [the summary judgment] standard provides that
the mere existence of some alleged factual dispute be-
tween the parties will not defeat an otherwise properly
supported motion for summary judgment.” Anderson,
477 U.S. at 247-48, 106 S.Ct. at 2510. Rather, “[o]nly
disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude the
entry of summary judgment.” /d. at 248, 106 S.Ct. at
2510.

In the instant case, in support of its motion for partial
summary judgment, the government submitted extensive
documentation that it incurred $5,441,201.25 in response
costs. The documentation included affidavits of various
EPA and Department of Justice (DOJ) employees charged
with accumulating the cost data. These affidavits were
supported by summaries of cost data accumulated in con-
nection with the Hardage site, and the source of that
data. The district court held, and we agree, that the
documentation offered in support of the government’s re-
sponse cost claim established a prima facie case that the

eT |

13a

government is entitled to response costs in the amount
Stated above, |

Once the government established this prima facie case,
the burden shifted to HSC to demonstrate that the gov-
ernment’s response action that gave rise to the particular
cost submitted at summary judgment, was inconsistent
with the NCP in that the government’s choice of response
action was arbitrary and capricious. In opposition to the
government’s motion for summary judgment, HSC of-
fered the affidavits of two expert witnesses that disputed
each of the government’s claimed costs on a variety of
grounds. However, HSC failed to identify any response
actions by the government that were inconsistent with
the NCP. Instead, HSC claims that to the extent that the
expert affidavits challenged individual costs as excessive
and unreasonable, the affidavits created a genuine issue
of material fact for trial. We disagree.

CERCLA § 107(a)(4)(A) is a strict liability statute.
The only way a responsible party can escape liability for
the government’s costs incurred at the particular site is
to demonstrate that the government’s response actions—
i.e., removal or remedial actions—underlying the costs,
are inconsistent with the NCP. HSC contends that a
challenge that an individual cost is excessive or unreason-
able demonstrates inconsistency with the NCP. However,
CERCLA § 107(a)(4)(A) does not limit the govern-
ment’s recovery to “all reasonable costs;” rather, it per-
mits the government to recover “all costs of removal or
remedial action incurred . . . not inconsistent with the
[NCP].” CERCLA § 107(a)(4)(A), 42 U.S.C. §$ 9607
(a) (4) (A) (emphasis added). The NCP regulates
choice of response actions, not costs. See 40 CFR.
§§ 300.65, 300.68 (1989). Costs, by themselves, cannot
be inconsistent with the NCP. Only response actions—
i.e., removal or remedial actions—can be inconsistent
with the NCP, which can be demonstrated by a showing
that the government’s choice of response action was ar-

l4a

bitrary and capricious. As long as the government’s
choice of response action is not inconsistent with the
NCP, its costs are presumed to be reasonable and there-
fore recoverable. NEPACCO, 810 F.2d at 748.

HSC argues that if the NCP fails to require reasonable-
ness of individual costs, the EPA has failed its statutory
mandate to develop a national contingency plan [NCP]
that includes “means of assuring that remedial action
measures are cost-effective over the period of potential ex-
posure to the hazardous substances ... .” CERCLA
§ 105(a)(7), 42 U.S.C. § 9605(a)(7). First, we note
that CERCLA mandates that the NCP assure cost-
effectiveness for remedial actions only. CERCLA con-
tains no corresponding mandate for removal actions. The
NCP does assure that remedial action measures are cost-
effective by requiring the government to consider cost
when selecting remedial alternatives, 40 C.F.R. § 300.68
(g)(1) (1989), and by requiring the government to select
“a cost-effective remedial alternative.” Jd. § 300.68(i).
However, a challenge that an individual cost is excessive
or unreasonable does not demonstrate inconsistency with
either of these NCP provisions. Rather, to survive sum-
mary judgment by demonstrating inconsistency with sec-
tion 300.68(g)(1) or 300.68(i) of the NCP, a defendant
must show that the government acted arbitrarily and ca-
priciously in failing to consider cost, or in selecting a
remedial alternative that is not cost-effective. HSC’s affi-
davits charging that certain government costs were ex-
cessive and unreasonable failed to show that the under-
lying government response action was inconsistent with
the NCP in that the government’s choice of response ac-
tion was arbitrary and capricious. Because response ac-
tion inconsistency with the NCP is the sole defense to
liability for the government’s costs, HSC failed to estab-
lish a genuine issue of material fact for trial.‘

4HSC also contends that the NCP incorporates the Federal
Acquisition Regulations (FAR’s), 48 C.F.R. § 1500 et seq., and that

15a

HSC next alleges that the district court erroneously
rejected, as conclusory, its expert affidavits relating to
whether the government’s costs were in fact incurred at
the Hardage site. The affidavits in question challenged
certain government response costs by stating that the
government failed to produce adequate documentation
that the purposes for which some of these costs were in-
curred were response activities at the Hardage site. The
district court dismissed these challenges as conclusory and
therefore inadequate to defeat summary judgment. HSC
argues that expert witness affidavits do not fail to defeat
summary judgment solely because they are conclusory.
Without deciding whether conclusory expert witness affi-
davits are sufficient, in general, to defeat summary judg-
ment, we determine that the above challenge to the gov-
ernment’s response costs is insufficient to defeat sulamary
judgment here. The expert witness affidavits at issue
amount to no more than a denial that the government’s
documentation establishes a prima facie case that it is
entitled to recover $5,441,201.25, in response costs. As
we have already stated, we believe the government’s docu-
mentation does establish a prima facie case, and therefore
HSC’s expert affidavits fail to establish a genuine issue for
trial. Just because HSC’s denial comes in the form of
expert witness affidavits does not make it any more sig-
nificant than a simple denial made in a pleading and as
such is insufficient to defeat summary judgment. See
Celotex, 477 U.S. at 324, 106 S.Ct. at 2553 (nonmoving
party may not rest on its pleadings but must set forth
specific facts showing that there is a genuine issue for
trial).

HSC also asserts that the entry of partial summary
judgment for the government must be reversed in light of

if the government violates a provision of the FAR’s then its asso-
ciated costs are inconsistent with the NCP. We find HSC’s argu-
ment irrelevant because HSC, at summary judgment, failed to pro-
vide any evidence that the government violated any provision of
the FAR’s.

16a

the district court’s subsequent remedy phase determina-
tions. Subsequent to the entry of summary judgment for
the government on the issue of response costs, the district
court conducted the remedy phase of the trial. At this
phase, the court considered both the government’s pro-
posed trial remedy and HSC’s proposed remedy. After
determining that HSC’s remedy was superior, the court
ordered HSC’s remedy to be implemented with minor
modifications. Incident to its decision concerning which
remedy to implement, the court stated that the excava-
tion component of the government’s trial remedy “does
not . . . satisfy NCP standards.” United States v. Hard-
age, 750 F.Supp. 1460, 1481 (W.D.Okla. 1990). HSC
argues that because, at the remedy phase of the trial,
the court found the excavation component of the govern-
ment’s trial remedy to be inconsistent with the NCP, and,
because inconsistency with the NCP is a defense to the
recoverability of the government’s costs, we must now re-
verse the district court’s prior entry of summary judgment.
We disagree.

As an appellate court reviewing the entry of summary
judgment, our review is confined to an examination of
the materials before the court at the time the ruling was
made. Voutour v. Vitale, 761 F.2d 812, 817 (lst Cir.
1985), cert. denied sub. nom, Saugus v. Voutour, 474
U.S. 1100, 106 S.Ct. 879, 88 L.Ed.2d 916 (1986).
“Neither the evidence offered subsequently at the trial nor
the verdict is relevant.” Jd. One who loses on summary
judgment cannot give a retroactive effect to a trial ver-
dict, using it in an effort to create a genuine issue of
material fact at the time the court was considering the
motion for summary judgment. Glaros v. H.H. Robertson
Co., 797 F.2d 1564, 1569 (Fed.Cir.1986), cert. dis-
missed, 479 U.S. 1072, 107 S.Ct. 1262, 94 L.Ed.2d 124
(1987).

Here, HSC is attempting to give retroactive effect to
the district court’s determination at the remedy phase of

17a

the trial that the excavation component of the govern-
ment’s trial remedy is inconsistent with the NCP. This
HSC cannot do. The time at which HSC was required to
establish the existence of a genuine issue of inconsistency
with the NCP, as to the particular response costs sub-
mitted by the government at summary judgment, was long
past when the remedy phase of the trial began. To de-
feat the government's claim for those response costs, HSC
was required to establish a genuine issue of inconsistency
with the NCP at the summary judgment phase, when re-
coverability of those particular government response costs
was at issue. The court’s subsequent remedy phase trial
determination is irrelevant to the prior entry of summary
judgment on the response cost issue. Our review is lim-
ited to the materials the district court had before it at
the time of the ruling, and as we stated above, based on
those materials, summary judgment was appropriate.

WI. DECLARATORY JUDGMENT

HSC contends that the declaratory judgment entered in
favor of the government must be reversed because it bars
HSC from contesting future response costs submitted by
the government, on the ground that the costs were in-
curred inconsistent with the NCP. We agree that, to the
extent the entry of declaratory judgment prevents HSC
from contesting future government costs on the basis that
the underlying government response actions giving rise
to the costs are themselves inconsistent with the NCP, the
judgment must be reversed.

CERCLA § 113(g)(2), 42 U.S.C. § 9613(g)(2) spe-
cifically provides that:

In any action [for recovery of response costs under
CERCLA § 107]... the court shall enter a decla-
tory judgment on Jiability for response costs or dam-
ages that will be binding on any subsequent action
or actions to recover further response costs or dam-
ages.

18a

(emphasis added). Thus, the entry of declaratory judg-
ment on the issue of liability for future response costs is
appropriate. The statute does not, however, contemplate
preventing challenges to future costs, submitted under the
declaration of liability, as having been incurred pursuant
to response actions that are inconsistent with the NCP.
The clear language of the statute dictates that a declara-
tory judgment determines Jiability for future response
costs, not recoverability of those costs. A defense that
the government’s response costs are incurred pursuant to
response actions that are inconsistent with the NCP is a
defense to the recoverability of particular response costs,
not a defense to liability for those costs. See United
States v. Kramer, 757 F.Supp. 397, 436 (D.N.J. 1991).
Therefore, a defendant who is declared liable for future
response costs may still challenge those costs as unre-
coverable because the underlying response actions giving
rise to the costs are inconsistent with the NCP. See eg.,
Kelley v. Thomas Solvent Co., 790 F.Supp. 710, 716
(W.D.Mich.1990); United States v. Fairchild Industries,
Inc., 766 F.Supp. 405, 415 (D.Md.1991); O'Neil vy.
Picillo, 682 F.Supp. 706, 730 (D.R.1.1988); United
States v. Northeastern Pharmaceutical & Chemical Co.
(NEPACCO), 579 F.Supp. 823, 852 (W.D.Mo.1984),
aff'd in part and rev'd in part, 810 F.2d 726 (8th Cir.
1986), cert. denied, 484 U.S. 848, 108 S.Ct. 146, 98
L.Ed.2d 102 (1987).

In its order granting, in part, the government’s motion
for partial summary judgment and declaratory judgment
on response costs issues, the district court stated, “the
United States’ motion for a declaratory judgment for lia-
bility for future response costs associated with the Hard-
age site . . . shall also be granted.” United States v.
Hardage, 733 F.Supp. 1424, 1439 (W.D.Okla.1989).
Thereafter, in its Judgment and Order filed on August 9,
1990, the district court set out the procedure for the
government to collect its future response costs from
HSC. United States v. Hardage, No. CIV-86-140i-P

VX

19a

(W.D.Okla.1990). The court indicated that should HSC
dispute any portion of the government’s claim for costs,
and the dispute carrot be resolved between the parties,
the “disputed claim [shall] be brought to the [cJourt for
resolution.” Jd. at 10-11. This language makes it un-
clear as to whether the declaratory judgment, as entered
by the court, permits HSC to dispute costs submitted by
the government on the ground that the response actions
giving rise to the costs are inconsistent with the NCP.
However, a statement by the court in its August 9, 1990
Findings of Fact and Conclusions of Law for Remedy
Selection Phase indicates that the court did not contem-
plate allowing HSC to contest the recoverability of the
government’s response costs on the basis of inconsistency
with the NCP, and to this extent we hold that the court
erred.

In its Findings of Fact and Conclusions of Law for
Remedy Selection Phase, the district court, in response to
a defense by the HSC concerning costs submitted by the
government, dismissed HSC’s defense stating, “[h]owever,

. the [court] granted the United States a declaratory
judgment for all future response costs. Therefore, if the
United States presents proof that these costs were in-
curred, it is entitled to recover these costs.” United States
v. Hardage, 750 F.Supp. 1460, 1500 (W.D.Okla.1990).
Although HSC’s defense to these costs was not based on
inconsistency with the NCP,” we believe the court’s state-
ment indicates that the court, under the-declaratory judg-
ment, would not permit any HSC challenge to the re-
coverability of future government response costs as long
as the government presents proof that the costs were in-
curred. This is reversible error, because, as we stated
above, a declaratory judgment under CERCLA § 113
()(2) determines liability for future response costs, not

5 HSC objected to the government’s summary of its DOJ direct
costs because it had not had an opportunity to review the docu-
mentation.

20a

recoverability, and therefore, a challenge to the recover-
ability of future response costs—i.e., that the response ac-
tions giving rise to the costs are inconsistent with the
NCP—must be allowed.

IV. HSC RESPONSE COSTS

HSC appeals the district court’s denial of certain HSC
response costs, claiming that the court erroneously ap-
plied CERCLA § 122(e)(6), 42 U.S.C. § 9622(e) (6),
to its claim for response costs, and that the court dis-
allowed certain HSC response costs based on the erro-
neous presumption that private parties may not recover
litigation-related response costs. We review questions of
law de novo, Estate of Holl v. Commissioner, 967 F.2d
1437, 1438 (10th Cir.1992). and findings of fact under
a clearly erroneous standard, O’Connor v. R.F. Lafferty
& Co., 965 F.2d 893, 901 (10th Cir.1992).

At the remedy phase of the trial, HSC counterclaimed
against the government as a responsible party for re-
sponse costs it incurred in instituting interim remedial
measures and developing its trial remedy. The district
court awarded HSC $3,716,695.23 of its claimed
$9,530,984.72 in response costs. The HSC costs allowed
by the court included the costs of implementing interim
remedial measures, and $3,220,000 of HSC’s costs of con-
ducting a second operable unit Remedial Investigation
Feasibility Study pursuant to a consent decree entered by
the court. The court disallowed the remainder of HSC’s
costs finding them “not necessary costs of response .. .
consistent with the [NCP].” United States v. Hardage,
750 F.Supp. 1460, 1519 (W.D.Okla.1990) (quoting
CERCLA § 107(a)(4)(B), 42 U.S.C. § 9607(a)(4)
(B)). Further, the court found that, based on the amount
of waste at Hardage attributable to the government, the
government was liable for 8.36% of HSC’s costs.

HSC contends that the district court erroneously ap-
plied CERCLA § 122(e)(6), 42 U.S.C. $ 9622(e) (6),
to its claim for response costs thereby disallowing costs

2la

which it was entitled to recover. We disagree. CERCLA
§ 122(e) (6) states:

~ When either the President, or a potentially respon-
sible party pursuant to an administrative order or
consent decree under this chapter, has initiated a
remedial investigation and feasibility study for a par-
ticular facility under this chapter, no potentially re-
sponsible party may undertake any remedial action
at the facility unless such remedial action has been
authorized by the President.

HSC contends that the district court improperly relied on
this section and, as a result, disallowed all HSC response
costs incurred without advance government approval.
HSC argues that § 122(e)(6) does not apply to
CERCLA § 106(a), 42 U.S.C. § 9606(a), injunction
actions. Because we find that the court did not, in fact,
apply § 122(e)(6) in disallowing any HSC response
costs, we need not decide whether § 122(e)(6) is appli-
cable to § 106(a) injunction actions.

In its Findings of Fact and Conclusions of Law for
Remedy Selection Phase, the district court included a
description of § 122(e)(6) as part of its general legal
discussion of CERCLA. Hardage, 750 F.Supp. at 1511.
However, following an extensive review of the record. we
find that the district court did not rely on this provision
in disailowing any of HSC’s claimed costs. For every
HSC cost disallowed, the district court found that HSC
failed to meet its burden of demonstrating that the cost
was necessary and consistent with the NCP. This is un-
doubtedly the standard that applies to private party re-
covery of response costs. See CERCLA § 107(a)(4)
(B), 42 U.S.C. § 9607(a) (4) (B).

HSC directs our attention to language by the court
inviting the government to indicate with which costs the
government agreed, and further argues that it was not

22a

mere coincidence that the only costs allowed by the court
were those costs that the government did not dispute. We
agree that it was not a coincidence, however, we believe
that in requesting the government’s response to the costs
claimed by HSC, the court was merely asking whether
the government, at trial, conceded that HSC was entitled
to any of the costs. The court was not inquiring as to
whether HSC had obtained advance government approval
prior to incurring these costs, as would be required by
§ 122(e)(6). Rather, once the government conceded
that certain HSC costs were necessary and incurred con-
sistent with the NCP, the court awarded these costs as
undisputed. Therefore, HSC’s argument that the court
erroneously relied on § 122(e)(6) is without merit.

HSC’s last contention is that the district court erro-
neously disallowed certain HSC response costs as litiga-
tion-related. HSC claims that the district court disallowed,
as a matter of law, all costs that it determined were
litigation-related. As a result, HSC now invites us to
conduct de novo review and rule on whether private
parties are entitled to recover litigation-related costs under
CERCLA. Because we determine that the district court
clearly disallowed HSC’s costs finding that HSC failed to
prove that they are “necessary costs. . . . consistent with
the [NCP],” CERCLA § 107(a)(4)(B), we decline the
invitation, and instead determine whether the court’s
factual determination that certain litigation-related costs
were not necessary and consistent with the NCP was
clearly erroneous.

In its Findings of Fact and Conclusions of Law for
Remedy Selection Phase, the district court carefully set
out the legal standard that applies when a private party
is seeking cost recovery from liable persons under
CERCLA. See Hardage, 750 F.Supp. at 1509-11. The
court correctly determined that, under the language of
CERCLA, private parties may recover “any other neces-
sary cost of response incurred . . . consistent with the

2

<<<

23a

[NCP].” CERCLA § 107(a)(4)(B), 42 U.S.C. § 9607
(a)(4)(B). In the context of discussing what is a neces-
Sary response cost and how a response cost is incurred
consistent with the NCP, the court addressed litigation-
related costs, Finding that there is no express authority
for the recovery of costs incurred to assist counsel in
their defense of litigation, Hardage, 750 F.Supp. at 1511,
the court went on to apply the “necessary and consistent
with the NCP” standard. Although the court ultimately
disallowed all HSC costs that it determined were litigation-
related, there is nothing in the record or court’s opinion
to suggest that the court found these costs per se un-
recoverable and therefore disregarded the “necessary and
consistent with the NCP” standard. On the contrary, in
its conclusions of law, the court specifically stated that
the various HSC costs “borne primarily to support the
HSC’s litigation position are not ‘necessary costs of re-
sponse . . . consistent with the [NCP].’” Jd. at 1519
(quoting CERCLA § 107(a)(4)(B), 42 U.S.C. § 9607
(a)(4)(B)). Therefore, because the court applied the
correct legal standard in determining which costs sub-
mitted by HSC are recoverable, we now review the
court's factual determinations under a clearly erroneous
standard.

In Daigle v. Shell Oil Co., 972 F.2d 1527, 1533 (10th
Cir.1992), we noted that CERCLA fails to define
“necessary costs of response.” However, we noted that
CERCLA did define the term response as a removal ac-
tion or a remedial action, and in turn defined removal
and remedy. /d. (citing CERCLA §§ 101(25), (23),
(24), 42 U.S.C. §$§ 9601(25), (23), 24)). We deter-
mined that the heart of the definitions of removal and
remedy, see supra Part I, are “directed at containing and
cleaning up hazardous substance releases.” Jd. at 1535.
We therefore concluded that “necessary costs of response”
must be necessary to the containment and cleanup of
hazardous releases. Id. at 1535-37.

lL

24a

Given the context of this litigation, it was not clearly
erroneous for the court to determine that costs, incurred
by HSC to defend against the government’s § 106(a) in-
junction action, were not necessary to the containment
and cleanup of hazardous releases at the Hardage site.
Unlike a situation where a site may remain hazardous
absent a private party's involvement, the EPA has been
involved at the Hardage site since 1979. The EPA con-
ducted studies of the site and developed a remedy to
contain and clean up the site. The EPA then sued for
an injunction to compel the responsible parties to enact
its remedy. Although the EPA’s trial remedy was rejected
by the court, the court had the authority to order the EPA
to revise its remedy until it developed an acceptable
method of dealing with the Hardage site. See generally
CERCLA § 106(a), 42 U.S.C. § 106(a) (district court
has jurisdiction to grant such relief as the public interest
and equities of the case may require). In other words,
regardless of whether HSC ever conducted any studies of
the site, or developed its own remedy, the Hardage site
would be cleaned up.

HSC, on the other hand, began investigating remedial
alternatives upon being named as a defendant in the gov-
ernment’s CERCLA § 106(a) injunction action. HSC’s
costs, although likely necessary for the development of its
trial remedy, are not necessary to the containment and
cleanup at the Hardage site. This is true even though
HSC’s remedy was ultimately accepted by the court with
modifications, for, as stated above, the court has the
authority to compel the EPA to submit an acceptable
remedy for the cleanup of Hardage, with or without any
involvement on the part of HSC. We hold that when a
private party incurs response costs in developing its own
remedy, solely to defend against the government’s § 106
(a) injunction action, the private party’s response costs
are not “necessary” within the meaning of CERCLA
S$ 107(a)(4)(B). For these reasons, we hold that it was

———

‘caine

25a

not clearly erroneous for the court to have concluded
that HSC’s litigation-related costs were not necessary and
therefore unrecoverable.

In sum, the district court’s order granting the govern-
ment partial summary judgment for recovery of response
costs is AFFIRMED. The district court’s judgment deny-
ing in part, HSC’s recovery of response costs against the
government as a liable party is AFFIRMED. The district
court’s entry of declaratory judgment in favor of the gov-
ernment is REVERSED and REMANDED for further
proceedings consistent with this opinion.

26a

APPENDIX B

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

No. 90-6325

UNITED STATES OF AMERICA,
Plaintiff-A ppellee,
v.

ROYAL N. HARDAGE, et al.,
Defendants,
and

UNITED STATES POLLUTION CONTROL,
Defendant-A ppellee,
Vv.

HARDAGE STEERING COMMITTEE, et al.,
Third-party
Defendants-A ppellants,

A. H. BELO, doing business as Dallas Morning News,
Third-party
Defendant-A ppellee,

AMERICAN AIRLINES, INC., et al.,
Fourth-party
Defendants-A ppellants,

ORDER
Entered February 17, 1993

a ee

27a

Before McKAY, Chief Circuit Judge, SEYMOUR,
MOORE, ANDERSON, TACHA, BALDOCK, BRORBY,
EBEL, and KELLY, Circuit Judges, and BROWN*, Dis-
trict Judge.

This matter comes on for consideration of appellants’
petition for rehearing and suggestion for rehearing in
banc.

Upon consideration whereof, the petition for rehearing
is denied by the panel that rendered the decision.

In accordance with Rule 35(b), Federal Rules of Ap-
pellate Procedure, the suggestion for rehearing in banc
was transmitted to all of the judges of the court who are
in regular active service. No member of the panel and no
judge in regular active service on the court having re-
quested that the court be polled on rehearing in banc,
Rule 35, Federal Rules of Appellate Procedure, the sug-
gestion for rehearing in banc is denied.

Judge Logan did not participate.
Entered for the Court
/s/ Robert L. Hoecker

ROBERT L. HOECKER
Clerk

* The Honorable Wesley E. Brown, United States District Court
for the District of Kansas, sitting by designation.

—

28a

APPENDIX C

UNITED STATES DISTRICT COURT
W.D. OKLAHOMA

No. CIV-86-1401-P

UNITED STATES OF AMERICA,
intiff,
" Plaintiff
ROYAL N. HARDAGE, et al.,
Defendants.

ADVANCE CHEMICAL COMPANY, et al.,
HARDAGE STEERING COMMITTEE,
Defendants and
Third-Party Plaintiffs.

¥.

ABCO, INc., et al.,
Third-Party Defendants.

Aug. 9, 1990
As Corrected Oct. 16, 1990

John R. Barker, Anna Wolgast, Trial Attys., Kurt
Weissmuller, Steven Novick, Gary S. Guzy, Bruce Buck-
heit, Kalyn C. Free, William Merrill, Jon Lipshultz,
Dianne M. Shawley, Jerry Schwartz, Department of Jus-
tice, Charles de Saillan, E.P.A., Steven Mullins, U.S.
Attys. Office, W.D. Oklahoma, Thomas Curtis, U.S. Air
Force, for U:S..

Jerome T. Wolf, Carl Helmstetter, Kansas City, Mo.,
Allan Gates, Little Rock, Ark., Jeffrey N. Martin, Wash-
ington, D.C., James C. Morriss, Stephen Fink, Dallas,

29a

Tex., Walter J. Hryszko, Houston, Tex., Michael D.
Graves, Tulsa, Okl., Howard Seitzman, Austin, Tex.,
Charles W. Shipley, Tulsa, Okl., Amanda G. Birrell,
Austin, Tex., Steve McKinney, Oklahoma City, Okl.,
Gavin McInnis, John D. White, Houston, Tex., Ross
Plourde, Andy Coats, Leanne Burnett, Jean McLemore,
Joseph F. Guida, Oklahoma City, Okl., Steve LeSatz,
Houston, Tex., Irwin Steinhorn, Oklahoma City, Okl., for
Hardage Steering Committee.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
FOR REMEDY SELECTION PHASE

PHILLIPS, District Judge.

I. INTRODUCTION

This Order arises from the trial of a bifurcated portion
of a CERCLA‘ case. The trial involved the selection of
a remedy for the cleanup of toxic wastes at the Hardage
Superfund Site (“Hardage Site”), a closed industrial waste
disposal site located near the town of Criner, Oklahoma.
The parties have presented the Court with competing
remedies.

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

‘Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, 42 U.S.C. §§ 9601-75 (1982 & Supp. V 1987),
as amended by the Superfund Amendments and Reauthoriation
Act of 1986, Pub.L. No. 99-499, 100 Stat. 1613 (1986) [hereinafter
“CERCLA” and “SARA” ].

30a

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

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

2The trial defendants included the defendants named in the
United States’ Amended Complaint. The majority of the defend-
ants organized themselves as the Hardage Steering Committee
(“HSC”) defendants. Section II of this Order contains a list of the
HSC defendants.

Other defendants for trial included the Consent Decree defend-
ants. On the eve of trial, the United States filed the Consent
Decree for the Implementation of a Partial Remedial Action:
Source Excavation and Soil Vapor Extraction, United States v.
Hardage, No. CIV-86-1401-P (W.D.Okla. Nov. 21, 1989) (filing
No. 2218). Under the provisions of the Consent Decree certain
settling defendants agreed to pay for and to perform components
of the United States’ preferred remedy at the Hardage Site. Sec-
tion VII of this Order describes and identifies the Consent Decree
defendants. These defendants supported the United States’ recom-
mended remedy.

3la

The government characterizes the defense proposal as
“peace in our time.” * The government argues that all con-
tainment remedies fail with the only question being when.
The defendants, on the other hand, portray the govern-
ment’s remedy as unscientific, costly, and a product of
“slavish adherence” to unsound litigation strategy. The
defendants also allege that the government’s proposed
remedy was a “moving target” that changed substantially
as the remedy trial drew closer.

As discussed more fully below, the Court divided the
entire Hardage Site litigation into four major phases: (1)
a remedy seiection phase; (2) a liability phase; (3) a
third-party claims phase; and (4) a cost allocation phase.
Because of the critical nature of the remedy disputes in
the case, the Court and the parties elected to proceed first
with the Remedy Phase. Although the parties’ estimates
of the time necessary for trial of the Remedy Phase ranged
from 52 days to several months,* the Court allocated only
20 days.” However, the trial was concluded in just 11
days, in part because of the streamlined procedures the
Court adopted,® and, in part because of the extremely
high caliber of legal representation on both sides of the
lawsuit.

* Reporter’s Transcript of Proceedings at 95 11.-6-7 (Nov. 24,
1989). The government attorney’s line during opening statements
was reminiscent of the late British Prime Minister Neville Cham-
berlain’s famous remark. Upon his return to London from Munich
on September 30, 1938. Chamberlain proclaimed a peace pact with
Hitler. Chamberlain told a throng of admirers. “I believe it is
peace for our time.” J. Bartlett, Bartlett’s Familiar Quotations
727 (15th ed. 1989) (footnotes omitted).

* See, e.g., Order at 11 (Jan. 20, 1989) (filing No. 1601) [herein-
after Jan. 20, 1989, Scheduling Order], attached hereto as Exhibit
A.

5 See Order Allocating Twenty (20) Days for Remedy Trial
(Nov. 6, 1989) (filing No. 2086).

® See Jan. 20, 1989, Scheduling Order at 3-6.

ee

32a

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

The Court has reviewed and considered the testimony
of all of the 45 trial witnesses.” In addition, the Court
has examined more than 8,000 pages of affidavits and
deposition transcripts, 250 pages of stipulations, and more
than 470 exhibits introduced by the parties at trial, total-
ing more than 150,000 pages of record.

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

TId. at 3.

8 Review of the witnesses’ direct examination was facilitated
by the affidavit procedure described above. The Court carefully
considered the cross-examination of the witnesses by means of a
daily transcript service.

® Section IX of this Order discusses the Consent Decree.

10 Section X of this Order details the United States’ response
cost claim.

Ni ceeeieeianeneeeiemeimeinnieiteiiacteel

33a

sponse cost claim,"’ and other equitable defenses asserted

against the United States.’

Il. PARTIES AND APPEARANCES

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

John R. Barker, trial attorney, Department of Justice

Anna Wolgast, trial attorney, Department of Justice

Kurt Weissmuller, Department of Justice

Steven Novick, Department of Justice

Gary S. Guzy, Department of Justice

Bruce Buckheit, Department of Justice

Kalyn C. Free, Department of Justice

William Merrill, Department of Justice

Jon Lipshultz, Department of Justice

Dianne M. Shawley, Department of Justice

Jerry Schwartz, Department of Justice

Charles de Saillan, Environmental Protection Agency

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

Thomas Curtis, United States Air Force

Several groups of defendants, as well as individual de-
fendants, participated in the Remedy Phase. The HSC
defendants '* made an appearance to oppose the imposi-
tion of the United States’ proposed remedy, to oppose

11Section XI of this Order discusses the HSC defendants’ re-
sponse cost claim.

13 Id.

13 Many of the original 37 defendants organized and formed the
HSC defendants. At the direction of this Court in the Case Man-
agement Order issued on March 26, 1987, all defendants were
represented administratively by liaison counsel. Case Management
Order (Mar. 26, 1987) (filing No. 189).

34a

approval of the Consent Decree, and to offer their own
proposed containment remedy for implementation at the
Hardage Site. Earlier, the HSC defendants had stipulated
to liability.

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

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

Jerome T. Wolff, AT & T Technologies

Carl Helmstetter, AT & T Technologies

Allan Gates, Oklahoma Publishing Co.

Jeffrey N. Martin, Oklahoma Gas & Electric Co.

James C. Morriss, Bridgestone/Firestone, Inc.

Stephen Fink, Bridgestone/Firestone Tire & Rubber
Company

Walter J. Hryszko, Exxon Corporation

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

Howard Seitzman, Borg Warner Corp., Texas In-

- struments, Incorporated

35a

Charles W. Shipley, Atlantic Richfield Co., Ashland
Chemical Co., and Maremount Co.
Amanda G. Birrell, Nalco Chemical Co.

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

Steve McKinney, Oklahoma National Stock Yards
Co.

Gavin McInnis, Ralph L. Lowe

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

Ross Plourde, Double-Eagle Refining Co.

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

Another group of defendants who participated in the
Remedy Phase consisted of the consent decree partici-
pants. These are the defendants who, on the eve of trial.
entered into a Consent Decree with the United States.
Under the provisions of the Consent Decree filed on No-
vember 21, 1989, the consent decree defendants agreed to
pay for, and to perform, certain elements of the United
States’ desired remedy for the Hardage Site.'* The consent
decree defendants who made appearance to support the
government's proposed remedy and to advocate the ap-
proval of the Consent Decree, and their counsel, included:

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

14 Section IX of this Order discusses the Consent Decree in
detail.

lain cea acne iieatmianeele

36a

Leanne Burnett, Kerr-McGee Refining Corp.

Jeanie McLemore, L & S Bearing Co.

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

Steve LeSatz, United States Pollution Control, Inc.

Irwin Steinhorn, United States Pollution Control,
Inc.

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

il. ABBREVIATIONS

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

Aff. Affidavit

App. Appendix

ARAR Applicable or Relevant and Appropriate

CERCLA Comprehensive Environmental Re-
sponse. Compensation, and Liability

Act
DE Defense Exhibit
Decl. Declaration

DNAPL Dense Non-Aqueous Phase Liquids
DOJ Department of Justice

37a

United States Environmental Protection
Agency

Feet

Figure

Gallons

Government Exhibit

Hardage Steering Committee

Light Non-Aqueous Phase Liquids

Non-Aqueous Phase Liquids

North Criner Creek

National Contingency Plan

Oklahoma State Department of Health

Occupational Safety and Health
Administration

Percent

Polychlorinated biphenyl

Paragraph

Parts per billion

Parts per million

Resource Conservation and Recovery
Act

Record of Decision

Superfund Amendments and Re-
authorization Act of 1986

United States

Volatile Organic Compounds

Years

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

Affidavits
Aff. at
Witness’ Last Name Page
Declarations
Decl. at —— -

Witness’ Last Name Page

38a
Rebuttal Affidavits
R. Aff. at
Witness’ Last Name Page
Rebuttal Declarations
R. Decl. at
Witness’ Last Name Page
Supplemental Rebuttal Affidavits
S. R. Aff. at
Witness’ Last Name Page
Supplemental Affidavits
S. Aff. at
Witness’ Last Name Page
Supplemental Declarations
S. Decl. at -
Witness’ Last Name Page

Stipulated Cross-Examinations

Stip. Cross at

Witness’ Last Name Page
Trial Transcripts
at
Volume Page

Orders, Briefs, Motions, and Memoranda
at ( ) (—_—-———_)
Designation on document Page or subdivision Date Filing number

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

IV. STIPULATIONS

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

The stipulations '° are contained in the following plead-
ing filed in this case:

15 Because portions of these stipulations will be helpful to an
understanding of this Opinion, the above stipulations, absent the

rere rennet

39a

Filing Filing

Pleading Number Date
Supplemental Joint Statement of Uncon- 2212 11/21/89
tested Facts.14
Supplemental Joint Stipulation 17 2233 11/22/89
Stipulation Regarding Analytical Data: 2201 11/17/89
Samples On Which The Parties
Agree 18
Stipulation Regarding Analytical Data: 2190 11/17/89

Sampies On Which the Parties
Disagree.!

V. ADDITIONAL PROCEDURAL HISTORY
AND BACKGROUND

A. Site Location and Operating History

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

supporting data, are attached to this Order as Exhibits B, C, D,
and E. The complete stipulations and supporting data accompany
the original filings, which remain in the custody of the Clerk of
the United States District Court for the Western District of
Oklahoma.

16 See Exhibit B. This stipulation superseded a November 17,
1989, Joint Statement of Uncontested Facts.

17 See Exhibit C.
13 See Exhibit D.

19 See Exhibit E.

40a

Over the eight-year period of operation, in excess of
20 million gallons of waste were transported to the Hard-
age Site for storage and/or disposal. Supplemental Joint
Statement of Uncontested Facts para. 48 (Nov. 21,
1989) (filing No. 2212). Originally, liquids and sludges
from drums and tank trucks were discharged directly into
unlined pits. As disposal areas filled, wastes were trans-
fered to other areas. Later, drums were no longer emp-
tied, but piled into what became the drum or barrel
mound. Ultimately, the site consisted of chemical im-
poundments including the large unlined, unsealed “main
pit,” a series of small temporary pits, and two large
mounds (“barrel” and “sludge” mounds).*° The types
of waste generally accepted at the site included: oil re-
cycling wastes, acids, caustics, lead, cyanide, arsenic, pes-
ticides, PCBs, and other substances. The Record of De-
cision (“ROD”) describes in detail other types of wastes
accepted at the site, along with the hazardous contami-
nants present at the site. /d. at 3.2.

B. Enforcement History

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

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

20 For a complete description of the operating history, see the

EPA Summary of Remedial Alternatives Selection for Source
Control sec. 2.0 (Nov. 14, 1986), in Defense Exhibit No. 100.

eel

es

4la

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

The Court bifurcated the trial in Hardage I to con-
sider Mr. Hardage’s liability first, and then to determine
the proper remedy and costs incurred or to be incurred
in any cleanup. On December 13, 1982. United States
District Judge Lee R. West entered his findings of fact
and conclusions of law in Hardage I. The Court found
contamination of soil and groundwater as well as releases
of contaminants into the air. The Court concluded that
the Hardage Site was dangerous and found Mr. Hardage
individually liable under section 7003 of RCRA and sec-
tion 106 of CERCLA. However, because the remedial
phase of the trial remained, the Court entered no judg-
ment on the injunctive claims. United States v. Hardage,
18 Env’t Rep. Cas. (BNA) 1687, 1696 (W.D.Okla.1982).
On August 19, 1983, the Court entered a partial judgment
under section 107 of CERCLA against Mr. Hardage for
$211,795, which represented the United States’ response
costs incurred through December 1982. The United
States thereafter sought to identify Mr. Hardage’s assets
and to obtain payment under the partial judgment. How-
ever, Mr. Hardage filed for bankruptcy on January 28,
1985, in the Bankruptcy Court for the Western District
of Oklahoma, and received a discharge in bankruptcy on
June 24, 1985.

After the Court’s liability ruling in Hardage I, the EPA
continued to study the Hardage Site through investiga-

21 No, CIV-80-1031-W (W.D.Okla. filed Sept. 8, 1980) [herein-
after Hardage /]}.

ee

42a

tions and- administrative review. The EPA prepared a
feasibility study to evaluate alternative remedial actions
to clean up the Hardage Site from technical, environ-
mental, and cost-eflective perspectives. The EPA con-
ducted studies of the Hardage Site in 1982, 1983, and
1984, The studies concluded that substantial work would
be necessary to clean up the Hardage Site. In addition,
the United States sought to identify other parties respon-
sible for the contamination, in light of Mr. Hardage’s
financial difficulties.

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

Following Mr. Hardage’s discharge in bankruptcy, the
United States requested, and the Court on July 18, 1985,
issued, an order administratively terminating Hardage I.
The administrative closing was ordered without prejudice
to the rights of the parties to reopen the proceedings by
April 1, 1986, “for good cause shown, for entry of any
stipulation or order, or for any other purpose required
to obtain a final determination of the litigation.” On
March 27, 1986, the United States moved to reopen the
proceedings and to amend its complaint in Hardage I.
The United States sought to add as party defendants vari-
ous generators and transporters of the hazardous sub-
stances located at the Hardage Site. The Court denied
the United States’ motion and dismissed the case on
April 1, 1986. The dismissal was without prejudice to
the United States’ rights to collect the earlier judgment
against Mr. Hardage, or to join Mr. Hardage in any sub-
sequent action, other than a money judgment, deemed
“necessary to allow EPA or its designees to remediate or
respond to conditions at the Site or take actions necessary
to protect the public health, welfare or the environment.”

43a

On June 25, 1986, the United States filed the instant
action, United States v. Hardage,” against 32 generators
and three transporters, each of whom allegedly shipped
between 100,000 and 1.7 million gallons of hazardous
wastes to the site. The United States also sued Mr. Hard-
age for the limited purposes specified in the Court’s
earlier dismissal. As in Hardage I, the complaint in
Hardage II sought injunctive relief under section 7003
of RCRA and section 106(a) of CERCLA to require
the defendants to clean up the site, and to recover costs
incurred by the United States under section 107 of
CERCLA.

Most of the original defendants in Hardage II or-
ganized themselves as the HSC defendants. The HSC’s
answer in Hardage II asserted numerous affirmative de-
fenses and counterclaims against the United States. The
HSC defendants in turn brought a third-party complaint
against approximately 180 additional third parties for
contribution, and to obtain reimbursement of the HSC’s
costs expended in taking response and remedial actions
at the Hardage Site.

C. Bifurcation of C.1se

In a Case Management Order issued on March 26,
1987, the Court bifurcated the case into two phases, with
the Liability Phase to be tried prior to the Remedy Phase.
Case Management Order at 7. The allocation of the
ultimate cost of any court-ordered cleanup would follow
later. Most of the defendants, however, stipulated to
liability under sections 106 and 107 of CERCLA. As a
result, the Court, in entering judgment as to the HSC
defendants’ liability on November 10, 1988, amended its
Case Management Order to provide for the Remedy
Phase to be tried as Phase I. Judgment and Order (Nov.
10, 1988) (filing No. 1553). The Court’s judgment also

22No. CIV-86-1401-P (W.D.Okla. filed June 25, 1986) (filing
No. 1) [hereinafter Hardage [1].

44a

delineated the scope of the Phase I trial. The trial was
to include “issues of appropriate response-remedial meas-
ures” for the Hardage Site, “the entitlement to and
amount of response costs, if any, and the extent, if any,
of [the United States’] liability” pursuant to the defend-
ants’ counterclaims and affirmative defenses. Yd. at 3.
The Court indicated that Phase II of the trial would de-
termine whether defendants, other than the HSC, were
liable under sections 106 and 107 of CERCLA, 42
U.S.C. $§ 9606 and 9607.** The judgment also indicated
that any trial of cross-claims or third-party claims for con-
tribution would be separate from the United States’ ac-
tion and would not commence until Phases I and II were
completed.

D. Alternate CERCLA Cleanup Provisions

The CERCLA provides the United States with three
alternate methods of providing for the cleanup of hazard-
ous waste sites. Section 104(a) permits the government
to use Superfund “* monies to clean up sites, and then to
seek recovery of the response costs from responsible par-
ties under section 107(a). Section 106 provides two
other methods for site cleanups when the EPA determines
that the site conditions “may [pose] an imminent and
substantial endangerment to the public health or welfare
or the environment.” 42 U.S.C. § 9606(a) (1982). Sec-
tion 106(a) permits the EPA either (1) to require the
Attorney General “to secure such relief as may be neces-
sary to abate such danger or threat” by filing a civil ac-
tion in federal district court seeking an injunction to
compel responsible parties to perform such relief, or (2)

_—_

23 The liability trial (Phase II) of this matter was conducted
from April 23-25, 1990.

*4The Superfund, formerly known as the Hazardous Substance
Response Trust Fund established by section 221, 42 U.S.C. § 9631,
continued as the “Hazardous Substances Superfund” under section
517 of SARA, 100 Stat. 1613, 1772, which added section 9507 to the
Internal Revenue Code of 1986.

45a

to issue administrative orders “as may be necessary to
protect public health and welfare and the environment.”
Id.

The EPA studied and investigated the Hardage Site
and incurred response costs in the process. However, the
EPA did not clean up the site itself under section 104(a)
of CERCLA. Instead, the United States pursued injunc-
tive relief, in Hardage I against Mr. Hardage and in this
case against the generators and transporters of hazardous
substances, to require the defendants to clean up the
Hardage Site. 42 U.S.C. § 9606 (1982 & Supp. V 1987).
This distinction is significant, because the scope of the
remedy trial conducted in December 1989 was deter-
mined directly by the EPA’s pursuit of injunctive relief
and by earlier rulings of this Court concerning the scope
of review of the EPA’s selection of response actions.

E. Scope of Review of the EPA’s Remedy Selection

Throughout this proceeding, the United States has ad-
vocated that the scope of judicial review of the EPA’s
remedy selection for the Hardage Site should be restricted
to review of the administrative record on an arbitrary
and capricious standard. However, on three separate oc-
casions, the Court ruled that the scope of review would
be de novo review of any remedy suggested by the EPA.

The record review issue first arose in the context of
the United States’ November 17, 1986, motion for pro-
tective order, which sought to limit the scope of deposi-
tion discovery by defendants of two contractors employed
by the EPA to aid in developing a remedy. Judge West,
on December 11, 1986, denied the motion for protective
order. United States v. Hardage, 25 Env’t Rep.Cas.
(BNA) 1343, 1986 WL 647 (W.D.Okla.1986). The
Court emphasized that the administrative record had not
vet been filed. /d. at 1344. The Court found that the
SARA record review provisions were not applicable to
the United States’ claim for injunctive relief under sec-

46a

tion 7003 of RCRA. ZId. at 1344-45. In addition, the
Court held that restrictions on judicial review did not
apply to injunctive actions generally. Id. at 1345. The
Court also concluded that the provisions of the Admin-
istrative Procedure Act were inapplicable. Jd. Judge
West ruled that section 106 injunctive claims “must be
resolved in traditional trials by federal district courts after
full discovery.” Jd. The Court further concluded that the
“defendants are entitled to de novo review of any sug-
gested remedy by EPA at the Hardage site.” /d.

On April 9, 1987, the Court denied the United States’
motion for reconsideration. United States v. Hardage,
663 F.Supp. 1280, 26 Env’t Rep.Cas. (BNA) 1053
(W.D.Okla.1987). The Court ruled, in addition to
its prior-stated rationale, that SARA record review pro-
visions could not be applied retroactively to actions filed
before the passage of SARA, and that a restricted judicial
review of the EPA’s remedial decision raised due process
concerns. Id. 663 F.Supp. 1280, 26 Env’t Rep.Cas.
(BNA) at 1055, 1059-61. The Court also distinguished
injunctive actions brought in federal district court pur-
suant to section 106 of CERCLA from those brought ad-
ministratively under section 106 for injunctive relief, and
from actions for cost recovery under section 107 in in-
stances in which the EPA funds site cleanups. Id. 663
F.Supp. 1280, 26 Env’t Rep.Cas. (BNA) at 1056.

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

On July 14, 1988, this Court granted dismissal of the
RCRA count. However, in a minute order dated Sep-
tember 9, 1988, the Court denied the United States’

47a

motion for record review, citing the Court’s prior deci-
sions on the motion for a protective order, dated Decem-
ber 11, 1986, and April 9, 1987. The Court also found
as a matter of law that section 106 claims “must be
resolved in traditional trials by federal district courts after
full discovery, and that retroactive application of Section
113(j}) of SARA is improper.” Minute Order Sept. 9,
1988) (filing No. 1435). On September 9, 1988, the
Court issued an accompanying memorandum decision
stating that reversal of the Court’s earlier rulings concern-
ing the scope of review was not warranted by the United
States’ withdrawal of the claim based on section 7003 of
RCRA or by the United States’ filing of the administra-
tive record in March of 1988. Order on Motion to Re-
strict Review (Sept. 9, 1988) (filing No. 1434).*

Accordingly. the Remedy Phase proceeded to trial with
this Court conducting a de novo review of the United
States’ proposed remedy for the Hardage Site. However,
under any standard of review, the Court’s decision on the
remedy would have been the same.

F. Special Master

Early in this litigation, the Court recognized that the
complexity of the issues, the number of parties, and the
need to expedite matters to ensure protection of the
public welfare might require the appointment of a special

25 The United States requested amendment of the Court’s Sep-
tember 9, 1988, order to allow certification of the record review
question for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
This Court initially allowed an interlocutory appeal on November
23, 1988, based upon trial estimates of from 6 to 10 months. Order
Allowing Interlocutory Appeal (Nov. 23, 1988) (filing No. 1559).
However, upon reconsideration, the Court withdrew its interlocutory
appeal certification when trial estimates agreed upon by the par-
ties reflected 52 days or less for trial. Minute Order (Jan. 11,
1989) (filing No. 1594).

48a

master under the provisions of Rule 53 of the Federal
Rules of Civil Procedure. Toward that end, at a status
conference on September 3, 1986, the Court directed the
parties to submit a list of the names of 10 persons they
believed would be qualified to serve as a special master.
On October 1, 1986, the parties filed their lists of sug-
gested candidates for special master. In addition, the
United States supplemented its submission with the policy
of the Attorney General of the United States on the use
of special masters. The United States opposed the use
of a special master as a technical advisor to the Court,
but agreed a master might help resolve discovery dis-
putes and could assist with the settlement process.

After interviewing candidates for the position of spe-
cia! master, on February 25, 1987, the Court issued an
order citing the following reasons for appointing a special
master.”°

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

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

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

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

In the order, the Court appointed Alexander H. Danz-
berger as a special master for the Hardage case. The
order delineated the master’s duties and authority. Order
of Reference to Special Master at 12-13. In addition, the
Court established a Master’s Reimbursement Fund of

26 Order of Reference to Special Master at 9 (Feb. 25, 1987)
(filing No. 166).

49a

$70,000 to meet the expenses of the master during his
term of service to the Court.

During his three years as special master, Mr. Danz-
berger:

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

(2) Served as hearing officer on pretrial matters.

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

(4) Recommended settlement strategies in magis-
trate’s hearings.

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

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

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

VI. WITNESSES CALLED BY THE PARTIES

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

50a

686T ‘82 JaquisAON
686T ‘8a LequUIaAON
686T “8Z 4qUIaAON

6861

‘8Z-LZ Jaquisaon

686I ‘LZ Aaqueaaon

686T "LZ 1equIaAON

686T ‘LZ AaqQuUIZAON

686T ‘T tequiaseq
‘LZ ABQUIDAON

SIDIAJOS [VIP
“9a IOJ Aasvuevw yofoid [euoizay

yluelsAy [VLaysnp
“ul :Ajayes pue yyvey jo sasvuvpy

(ddississtyy
‘BANGSYITA “UOIZRYS JUBWIAedx Ty
SARMAN}V AA “AVBUIZUD [LAID Yyovasay

}SIJO[OII XO} ‘ guaptsead aor,

ysl YyI0e3
-O1pAY S1ossajoid younf{pe ayewossy

uoIs
-IAIp 848SVM SnoOpiezey pue sassad0id
[Vlajsnpul ay} Ul aAveUIsUa [woTWaYo
‘dasvuew yoloid/avaulsua ssa001g

dJasevuvw

pofoid pur 4sisojoaZoapAy ao1ueg
ysloisAyd [10s

:sadudtos dowd puv [los jo Jossajoag

AUOUWII4S9 J,
JO 07Bq

‘uy
‘JO1PUOD UOIZNT[O_g *S'A
‘ou
JOAQUOD UOTZNTIO”d “S7

sSis0uIsuy Jo sdi0g
AWLLY $278} pozuy

SdzVlOssY JUIWI[D

BUOZIAIY JO AZISIBAIUQ

‘OUT ‘IITH WHO
‘oU] ‘TH WHO

AJISIOAIUD JY FP YW sexoy

ydog “VY uaAa}s
Aouvay uuy Arvyy

‘ap ‘ouvuryng
uyor yoopaAn

ddrys "W eyouuy

AajpUueg ‘AA plorey

oyueg *g ydasor

MIP “YW LAT

UMOIg “AA Ary

pz UOTZEdNdIQO AO
uolssejoig ‘ssauisng

Jakojdury

*

OWUN SSOUPT MA

SII}IVq 9d109q] JUBSUOD puv JUEWIUAIAOY BY} Aq PaT[VO sessouyTM “WV

S5la

686T ‘0 JequIsAON

686T ‘OE JequisAoN
686T ‘OE Jequieaon

6861
‘08-6Z TequiaAon

6861 “6% JequisAON

6861 ‘62 JequiaAoN

6861 “6% JequisAoN

686T “62 JequisAoNn

6861 “6% JequisAON

Ec rmes

Sul190UIZUs pu sdUdINS
qUSMIIZVUCU [VYUSUIUOIIAUD UI 4Uey
-[Nsuod ‘!1e0uIsue [IAID [euOoIssezoid
peiejsiZo1 SUBUIIeYyo pue JuepIsolg

Yyoivesey
suol}yeiedG pues Sullveulsuy [AIO
jO JuewyIedag ‘1Ossejoid yueysissy

zUBYNSsUOD Zulsv8uU
“IZue SdcinOseat JayVM ‘4yuaepisoig

yUSpIseid 9A VAT}
-noexe pue ysIsZojoasoipAy jedioutsg

pWISO[OIpAY [4SIZ0[0a3 po1zsdysi3ey

[vedio
-ulid !AdAING [BdIZ0[0a4) 93e}g sIOUT]
“II 943 Jo youeag Aajstwayooar) pur
ABolOIt) [VJUDWMIUOAIAUT 9Yy} JO JoryD
youeig pue ysiweyooer) [edioulig

199UIZUa [LATO

:dnoir) ssadoig [elijsnpuy ‘1aseueyy
aIG wepivy oy} Iveu wary v

SUMO JaY}JOU BsOYyM JaysvuUpReay AWA
-peoe UBI}sSIIYD pue 10jsed ayeloossy

ays duinp esepiey vy} aAvou payeo
-O| Wey Altep A[IwWeBy B JO TauMo-09

‘dul ‘oylsod
SY PY uvwyiey ‘yonag

A}ISIBAIUL) UOJOUTAg
poezyerodoouy] ‘seyeloossy

y YWepug “y sewoyy
‘OUT ‘OLZO"JoayorpAH
WldYD 094) OApAH

sa}vloossy
Py uyYIy “yy :Aeaing
[BISojOay 93e}g sIOUTTI]

‘oul ‘ITH WZHO

BULOYRIYO ‘aloo ‘yoanyo
yideg enueay udssjseq

peAojdura-jlag

yonag "W uyor

ayer "Y 1a42q
Hey “y sewoyy,

uos}1aqoy “g uyor
T9zeOM “Y Arey

UWlID “y Jzaqoy
SIAR] “AA Woqoy

GyWs
adA0y [anues

peoyaziy, auely

6

52a

‘A[UO sesodind MAIAJaAO Joy St ALvWUNS SIU “Spley [B4laAes UL asipledxe pey pai}sea} oyA sessou
“jim Auvpy ‘“SUOIZBOYyT[ENdD ,sasseujIM 9y} 0} soYsnf Op you Op A1OZazeO SITY} UL SUOIZdIADSap ayy JO aWOS ,-

6861 ‘TT tequieseq
‘gz 1aquIsAON

6861 ‘8g TaquUIaAoN

JIIUIBUS [BJUSWUOAIAUG
:quepiseid aoIA AOluas pue [edioulg

S9JIAIVG YyBay [eyUeU
-U0IIAUG AOJ JQUOISSIUWOD Ajndeqg

AUOUWII}SI J,

jo oyeq

686I ‘F equiaseq

686T ‘T tequiavaq

686I ‘T taquiaseq

G8G6T ‘T 4equisdeq

686T ‘OF AequiaAoN

uolzednd0Q 410
uoIssejolg ‘ssauisng

queyunosoe o1qnd payiziad fUOIsIA
-Ip Sulynsuod JuoweseueW ‘aUyIeg

queyunosoe oqnd
peytyied ‘faeuzied pue dapunojog

quejunosse aqnd payiyled {aa[[014
-u0g 94} JO BdYQ ‘UOIJIas BuIzaA0d
-81 puB BurzUNodIE 4s09 ayy JO JoryO

qsiueyo ssa001d ‘yuepIseig

UOISIAIG, QUOT
-93BVUR 9ISVA, SNOpsezvy ‘10z0011G

Auowitysa J,
JO 038

pz UOTZEdNdIO 10
uOIssojoig ‘ssoulsng

uoljetodi09 NOUIANG

4WBEH JO JUSU
-yaedaqy 93eyg BWOYRLyO

sIIvH “H Hoqoy “2

uBWe[0D “S HAR “T

redojdurgy

OWBN SSOUyI A

syuBpuazeq] ey} Aq perleD ssouzTAL “

Bunox FY ysurq

pasodjaeyg
‘UlyaeHoW WF ourqny

AQuasYy UOlz}II4}O1g [eVyUEW
“UdDTIAUG =89}B}H = pez!us)
‘dul ‘SsyUBy[NSUOD
[vyUIWIUOITAU AaAOTY
Auesy UuolzoIj}OI1g [B}yUsW
-UOIIAUT §=§03B}g pezlUp

sovyousyy ydesor ‘Zz

ulyee DOW
‘V Hope” “TZ

9900) WITT “06

daAOY ouasNY ‘GT

saved ‘WUATIV ‘ST

zako|dury

OWEN SSOUBT AA

53a

686T ‘9 aquia.eg

686T “9 Jequisdagq

686L ‘p taquiedag

686I ‘ph Joquiaseq

6861 “ph Jequiasaq

6861 ‘pb taquieseq

6861 ‘T 4equis.eq

686T ‘2 tequiaveg
*8Z 19quIeAON

686T ‘TT tequia.aq
‘8Z JaquUIdAON

xedevA jo Japunoy pue
LopeatIp !ZulIvulsue [IAD Jo Jossay
-O1d 9381D0sse puke 94N}1YsU] Yores
“OY [BJUSMIUOIIAUM 94} JO 10,I0AI

qSI30

“[O1pAy Joyempunois {yuaptsaad aor A
Jaautsue

[BUOISsejoid paieysIZe1 ‘!yuapiserg

sulajqoid 13azVM
“punois Jo uorynfos ay} 07 pardde
soishydoas ajoyaioq ul 4uRznsu0g

ySISopoaZoipAYy AO eg

JgautZue [einjonays
pue [voluyIe}0es ‘asvuvul [RUOIZay

ue NsUuOD
Sulivoulsue = [ROTUYDa}0aS quepued
~O9pul *SulVeulsus [IAD Jo Iossojoig

AZojoApAY Ul JuRzNsuOd Yeys I0TUNG

4SIBo0[0a3
-o1pAy [euolssajoid dJazea punois
peyizie9 pur JaIeUIZUa [eJUBWIUOIIA
-ua ‘iasvuvw yofoud pue jedioug

‘OU. ‘selsojouysey, [ejuew
“uoltAUgq = xedeA {4nd
“Iyoouu0p «jo = (AYISIaATUG

‘UT ‘saz BID0S
“SV YY sojndopedeg ‘g's

‘UT ‘SazBID0Ss
“SV ¥ sojndopedeg ‘sg

qUB}[NSUOD o4BALIg

‘OUI ‘ysaMyzNOS-WyW

‘OUT “TITH WZHO

Aaaysag
‘BIudOsT[eO Jo AzIsIaATUp

uolzeIOdI0D LI

‘OUT QSaMYINOG-WYT

SvoyY “YW 2831005

uosie’y "gq uaAe}g

sojndopedeg
"§ SOIARYS

SABY 3309 “Ah
a IWIS Yavjl *f

(uorztsodap 4q)
uyey ueydazs

[243 “Y souree

xXO09H “Y Arey

380g “9 pavyory

54a

686T ‘ZT tequisseq

6861 ‘ZT tequis.eq]

686T ‘ZT tequisseqT

6861 ‘ZI Jequisseq

686T ‘TT 1equisseq

6861 ‘TT tequisseq

686T ‘L JequisoeqT

686T ‘9 Jequiedeq]

UOISIA

“Iq JusWeseueW [BIouBUIYy ‘10}0011G
esuodsey AouesZieuly pue

94ISPM PHOS JO BYO “Yeig Juow
-aseuey sdinosay 9Yy} JO 10zIIIG

UOISIAIG JUOWIAZeUR LY
soIjsne “Yeyg sodlAleg sAIZeIysIUTUI
“PV pue seiqt[oey 24} JO s10pIIG

ySlSo[oaZ0ipAy Butyjnsuod padojd
-wd-j[as ‘AZojoaZoipAy jo 1ossajoig

ysisojoipAy ‘yuepiseid puv [ediug

qUByUNOIe dT]
-qnd peyizies ‘1auzied yIpne aolueg

AZolouyoa, [VorweyD JO 10z 911

199uls
-ud [BolUYI4I0NS pajeysisei ‘{198UIT
-U9 [IAID pataysiser Sdnoriy Zutssvau3
“ug [[ypuey ‘10z0e1Ip yoafoid so01uag

Auoullysa J,
yo aeq

uorzednd00 10
uolssajoig ‘ssaursng

U0I}8.14S1
-UIWIPY SedlAJeg [e1aues

AduesYy uo0lja}01g [ejuoW
“UdTTAUTT «893835 psezlup

eo1ysne JO JuOW

-yaedeaq «= 894} pazUQ

opium
Jap uvA paljuRyy

(quaepyge Aq)
“ap “yezozsne
"T SnoeppeyL

(tAepyye Aq)
[[e41ng utwefueg

$

%

‘T

JUSWUABAOY) By} Aq pal[eO sessouzTAA [BWNQGeYy “CO

‘oleqUQ
‘oojtozeA, JO AjlsaaAlup

‘dU ‘se}eID
-ossy AZsojoipAY poiddy

puvigay F siado0g

‘OU
‘AZojouyoay, Aazempunosiy

uolIzeIOd10g LI

sakojdurg

ALY “Y UYor

Ill
‘o][94809 urmefueg

svunzeyy
“Vy sewuoyL

uMoIg “Y preyory

us[[V P1BvUuOs’T “Y

‘OT

“ST

“SI

OWEN SSOUzT AA

55a

686L “ET tequia.eq

686I ‘ZI Jequiaseq
686I ‘ZT Aequiasaq

686T ‘ZT Jequiaseq

4SL3o
-[O1pAy Ja}VMpunols “yuapisoad BIA

qSIWIayo [BoIzAyeur dtueZI9

AsxIUI SUI [IATD

ySIWaYy 0a
-O1pAy :1ossajoid younfpe syeroossy

“OUT ‘saqeId
-OSsSyY 2 sojndopedeg S'S

UOSIB’T ‘gq UaAd]IG “|

S}URpUata(y a4} Aq payeD sossauqzTA\ [eINGeYy-Ing “q

AduaBY UOl}DI}0I1g [eJUOW
“UOLIAUTT §=Seze}g pau

U41IY}.10 N-uaYyD

BuoZIAY Jo APIssaAIUp

JWY "TUpW °9
PULLPHIS “Yeap °¢

Ao[JUIT *M PlOleH “fF

56a

VII. FLAWS IN THE GOVERNMENT'S
PROPOSED REMEDY
A. Overview

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

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

3. While the Court considered studying the possibility
of utilizing soil vapor extraction in connection with the

57a

HSC remedy, a review of all of counsels’ closing argu-
ments and final comments to the Court,”* as well as cer-
tain evidentiary factors identified by Dr. Richard Brown
on December 7, 1989,” and testimony by other witnesses
cited below, persuaded the Court that it should not at-
tempt a hybrid remedy or include soil vapor extraction
as part of the remedy ordered for the Hardage Site. Ac-
cordingly, there will be no soil vapor extraction com-
ponent in the remedy ordered by the Court.

B. Vacillating Nature of the Government’s Remedy

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

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

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

28 See, e.g., XII at 2344.
29 1X at 1730-49.

58a

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

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

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

7. The government’s changing remedies also adversely
affected its evidentiary presentation at trial. One concep-
tual difficulty with the government expert’s soil vapor
excavation feasibility model was that the model was pre-
pared when the EPA’s lancing remedy was under con-

59a

sideration. This soil vapor extraction model, which was
based upon a lancing theory, was not changed after the
EPA's excavation remedy displaced the lancing remedy.
IV at 873-74; XII at 2359-60. See IV at 801.

C. The Excavation Component of the Government's
Remedy

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

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

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

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

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

60a

was in the practical aspects of excavation at the Hardage
Site that the government’s case fell apart.

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

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

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

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

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

6la

11. Excavation is not an appropriate remedy for the
Hardage Site because of the way the drums were deposited
and dumped. DE 30 tab D. At other hazardous waste
sites, drums or barrels are placed in specific locations in
a specific array. The placement of drums at the Hardage
Site, however, was random. Jd. IV at 752-829. The
OSDH opposes the EPA remedy primarily because of the
proposed excavation. Coleman Decl. at B-5; III at 588-
620.

12. The OSDH is the agency of the State of Okla-
homa, which is responsible for regulating the manage-
ment and disposal of its hazardous waste, that should
ensure the protection of the public health and welfare
and the environment. The OSDH is the designated Super-
fund agency within the state. See Okla.Stai. tit. 63.
$§ 1-2001 to -2021 (1981 & Supp.1987).

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

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

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

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

17. Excavation experience at other sites suggests that
only a small portion, less than 10%, of the drums remain

62a

intact and full of liquid. III at 560-62. The government’s
assumption that more than 12,000 of the estimated
18,000 barrels at the site are full to the brim is fatally
flawed. IV at 755-56, 739-833; III at 565-66.

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

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

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

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

22. Contrary to what the EPA representatives told
two citizen witnesses, excavation and soil vapor extrac-

——Seeaaaaae =

63a

tion will not remove 90% to 99% of the hazardous waste
within 10 to 20 years. IV at 708-32. Groundwater and
soil contamination problems will remain at the site for-
ever. DE 175 at 3. Moreover, the Hardage Site can
never be returned to its prewaste disposal condition under
any remedy. V at 1174. The EPA simply supplied these
citizens with copies of its experts’ affidavits and persuaded
them that the EPA remedy was the best remedy for the
citizens living near the Hardage Site. Critical information
was not supplied to these citizen witnesses. As a result
the Court has placed little, if any, weight on this testi-
mony in support of the government’s excavation remedy.

23. It is likely that very few of the drums remaining
at the Hardage Site contain liquids. Schmittle Decl. at
D-21 to -22; DE 44 at 1, 7, table 1; DE 21 at 3-26.
4-1 to 4-2; DE 30 tab D. In another excavation effort.
less than 500 drums were found intact in a 15.000 drum
removal! effort at a hazardous waste site. III at 560-62.

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

25. This review team leader of the EPA’s draft feasi-
bility study, Steven Hahn, a geotechnical engineer who
worked on hazardous waste sites, felt that a “fatal flaw”
in the feasibility study was that it did “not carry at least
one containment alternative through detailed evaluation.”
DE 175 at 3. Mr. Hahn believed a viable containment
alternative existed. He further noted that all of the exca-
vation alternatives were “terribly expensive” and ques-
tioned the justification “for spending so much money on
source removal, considering that extensive groundwater/
soil contamination problems will remain at the site for-
ever.” Jd. at 1, 3. This document was offered into evi-

64a

dence by the HSC, and was received without objection.
IV at 818-34.

26. Mr Hahn also pointed out the following with re-
spect to the 18,000 drums “assumed” to be at the Hard-
age Site.

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

DE 175 at 4.

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

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

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

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

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

65a

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

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

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

35. Workers cannot be completely protected from the
tisk of injury or death if an explosion occurs during
excavation. V at 1138; VI at 1236.

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

37. The government’s excavation witness, Mr. Bruck,
acknowledged that he had little on-site experience. His
work as a program manager involved minimal on-site
experience. He testified that two excavation shifts could
be utilized, one in the early morning and one in the after-
noon. The workers would wear level B protection. Level
B protection is high-level protection, involving suits,

66a

gloves, boots, respirators, etc. Level B protection poses
heat stress problems for workers that can be alleviated
by multiple work shifts. The notion, however, that work-
ers could perform such work in Oklahoma in summer
afternoon temperatures is at odds with the reality of
the state’s summer weather. Excavation difficulties would
be compounded because Mr. Bruck expected to uncover
the type of drum arrays depicted in Defense Exhibit No.
30, tab D. V at 1105-40.

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

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

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

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

42. The government’s excavation plans are more
properly characterized as being at a general philosophical
Stage rather than at a specific stage. V at 1136; III at
567. The workers performing the excavation, however,

————————

67a

realistically would be exposed to a serious risk. V at
1106-41. This Court is not prepared to risk the safety
and lives of Oklahoma workers on such tenuous plans
and proposals.

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

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

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

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

47. Emission control measures would have to be im-
plemented to prevent dust and vapor emissions during
the excavation. These measures would include vapor
suppressant foams, and might also include wetting agents,
plastic sheeting, visqueen, clean soil, and other materials.
R. Davis R.Aff. at 3-4; Bruck Aff. 7; GE 2 at 3-38:
If at 543; V at 1101. The government’s nebulous plans

68a

regarding this critical and dangerous aspect of excava-
tion do not justify inclusion of excavation as a remedy
component for the Hardage Site.

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

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

50. Excavation poses significant risks due to emis-
sions. The dangerous short-term risk to workers is not
outweighed by the alleged long-term benefits associated
with excavation. The HSC risk expert, Mr. Harris, pro-
vided persuasive testimony to the Court regarding the
dangers of excavation. III at 636-66. The Court found
this testimony more persuasive than the testimony pro-

vided by the government’s risk assesment expert. II at
409.

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

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

53. Excavation will present a risk of fire, explosion,
and physical injury from direct contact with hazardous

——eaaeEeEeEEeEeee—eEeE

69a

wastes if incompatible wastes mix during the work.
Harris Decl. at C-10 to -15; DE 140; III at 640, 643-
44, 690-91; VI at 1231, 1233.23.

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

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

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

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

58. Even after excavation, pumping, and soil vapor
extraction 500,000 gallons of waste would remain at the
Hardage Site under the EPA remedy. IV at 869.

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

pieereeeell

70a

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

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

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

62. Excavation of the barrel mound and certain por-
tions of the main pit to remove buried drums and free-
phase liquids is not a feasible remedial action for the
Hardage Site. The government witnesses’ primary point
is that a worker’s health and safety plan can be devised
for the EPA’s proposed remedy. III at 521-22; V at
1099. The Court, however, cannot order an excavation
undertaking such as- that proposed by the government
(in any form) to proceed on the state of this record.
The Remedy Phase was designated as the phase of this
litigation in which the Court was to order a remedy for
the site based on the evidentiary presentations of the par-
ties. This Court has no intention of deferring a remedy
decision to future excavation studies or plans that per-
haps could be developed on any one of several excava-
tion proposals. Cleanup at this site has been delayed

——

Tila

long enough. If excavation is an appropriate remedy for
the Hardage Site, the government has had more than
ample opportunity to prove it. This was not done during
the Remedy Phase.

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

64. Insofar as the cleanup standards contained in sec-
tion 121 of CERCLA and in the national contingency
plan regulations are binding upon the Court, and inso-
far as these standards may be considered by the Court,
they require rejection of remedies that do not meet the
threshold standard of protecting the public health and
welfare and the environment. See, e.g., CERCLA § 121
(b), (d)(1); 40 C.F.R. § 300.68(a), (g)(3), (1) (1)
(1989).

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

66. The excavation remedy proposed by the EPA
presents unacceptable risks to workers, to nearby resi-
dents, and to

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1017%3A2. Public record. Not legal advice.