United States District Court, E.D. Arkansas, Jonesboro Division
March 1, 2004.
UNITED STATES OF AMERICA, PLAINTIFF,
WILLIAM M. GURLEY, DEFENDANT, and THE STATE OF ARKANSAS, INTERVENER.
The opinion of the court was delivered by: STEPHEN REASONER, District Judge
This Court conducted a hearing on Plaintiff's right to
reimbursement of response costs incurred or to be incurred at the
Gurley Pit Site and South 8th Street Superfund Sites located
in northeast Arkansas. The Court finds the United States is
entitled to response cost at the Gurley Pit Site in the amount of
$13,986,191.94,*fn1 plus interest from July 24, 2002 until
the date of judgment, plus post judgment interest at the rate of
1.23% until paid. The Court also finds the United States is
entitled to response costs at the South 8th Street Site in
the amount of $6,979,055.18*fn2 plus interest from July 24,
2002 until the date of judgment, plus post judgment interest at the rate of 1.23% until paid, plus a declaratory
judgment for all future response costs at the South 8th
Street Site. The State of Arkansas is entitled to a declaratory
judgment for all future response costs incurred by the State at
the South 8th Street Site.
I. BACKGROUND FACTS AND PROCEDURAL HISTORY:
This case has a long and tumultuous history, a brief review of
which is required for a thorough understanding of these
proceedings. In November, 1987, the United States brought an
action under Section 107(a) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 ("CERCLA"),
42 U.S.C. § 9607, against Defendant, William M. Gurley, and others
to recover all of its response costs in cleaning up the Gurley
Pit Site located in northeast Arkansas. That action was assigned
to the Honorable George Howard, Jr. Section 107(a) of CERCLA
authorizes the United States or a state to recover from liable
parties "all costs of removal or remedial action incurred by the
United States . . . not inconsistent with the national
contingency plan ("NCP")." 42 U.S.C. § 9607(a). On July 14, 1990,
Judge Howard issued a Memorandum and Opinion granting the Motion
for Summary Judgment filed by the United States as to liability
against Mr. Gurley at the Gurley Pit Site (also referred to
occasionally in the record as the "Edmondson Pit Site"). United
States v. Gurley Ref. Co., et al., No. 3:86CV291, slip op. (E.D.
Ark. June 14, 1990). Two years later, Judge Howard issued an
Order holding Mr. Gurley and related entitles liable for
$1,786,502.00 representing the costs incurred by the United
States through February 28, 1990, as well as a declaratory
judgment for future response costs at the Gurley Pit Site.
United States v. Gurley Ref. Co., 788 F. Supp. 1473 (E.D. Ark.
1992). In 1994, the Eighth Circuit affirmed the judgment as to Mr. Gurley.
United States v. Gurley, 43 F.3d 1188 (8th Cir. 1994),
cert. denied, 116 S.Ct. 73 (1995).
In July, 1995, Mr. Gurley filed for bankruptcy in the Middle
District of Florida. On April 24, 1996, the United States filed a
Proof of Claim in the bankruptcy court against Mr. Gurley for the
response costs at the Gurley Pit Site and at another site, the
South 8th Street Superfund Site ("South 8th Street Site").
After a trial in September, 1997, the bankruptcy court denied Mr.
Gurley's discharge, held that Mr. Gurley had concealed
substantial assets in an effort to avoid the CERCLA judgment
against him, and entered a judgment against Mrs. Gurley
determining that the concealed assets were property of the
bankruptcy estate.*fn3 United States v. William M. Gurley,
No. 95-0293, Bankr. M.D. Fla. (J. and Mem. Op., Aug. 15, 1997);
United States v. William M. Gurley, No. 95-0293, Bankr. M.D.
Fla. (Am. J., Sept.16, 1997). That judgment was affirmed by the
Eleventh Circuit Court of Appeals. Betty Jean Gurley v. George
E. Mills, Jr., Trustee, No. 98-01169-CIV-ORL-18 slip op. (11th
Cir. Sept. 20, 2000) (per curium).
On March 23, 1998, the United States filed an Amended Proof of
Claim in the bankruptcy action. Mr. Gurley then filed a Motion to
Withdraw the Reference which was granted by the United States
District Court for the Middle District of Florida. On February
25, 2000, the Florida District Court transferred the claims of
the United States to this Court. The State of Arkansas intervened
filing a claim for Declaratory Judgment alleging that Mr. Gurley
is liable for any response costs incurred by the Arkansas
Department of Environmental Quality ("ADEQ").
II. CURRENT LITIGATION: The United States filed Motions for Summary Judgment in this
action as to the Gurley Pit Site based on the Declaratory
Judgment in the former Gurley action before Judge Howard. The
United States also filed a Motion for Summary Judgment as to the
South 8th Street Site for all response costs incurred and to be
incurred in the future. This Court conducted a hearing on the
motions and issued an Order dated September 27, 2001, granting
the Motions for Summary Judgment in all respects, except as to
the factual issue of whether the response costs were inconsistent
with the NCP.*fn4 This Court then conducted a court trial on
the amount of the response costs in the action. At the conclusion
of the trial, the Court directed the parties to file post-trial
briefs. The only issues before the Court at this time are 1) the
admissibility of payroll cost exhibits; 2) whether the response
cost incurred in this action are inconsistent with the NCP; and
3) joint and several liability at the South 8th Street Site.
III. ADMISSIBILITY OF PAYROLL COST EXHIBITS:
During the trial on costs, the Court admitted the summary
exhibits*fn5 offered by the government but excluded
admission of payroll costs in the summary where the payroll
information did not reveal the underlying salary and wage rate.
The United States filed a Brief in Support of Motion for
Admission (Doc. No. 93) of the payroll costs during the last days
of the hearing. Mr. Gurley filed his response (Doc. No. 95) and
the United States replied (Doc. No. 96). From the pleadings, the Court finds the payroll costs listed in
the summaries are admissible. The payroll reports generated from
the Environmental Protection Agency ("EPA") Integrated Financial
Management System ("IFMS") show the amounts paid and the hours
worked per pay period for each EPA regional and headquarters
employee who worked on the Gurley Pit Site and South 8th
Street Sites.*fn6 The computer printouts detailing payroll
costs incurred are admissible pursuant to FRE 1006 since there is
sufficient supporting underlying data and the government
established that the printouts accurately reflected the data
stored in the IFMS computerized central accounting system. EPA
Region 6 accountant Dennis McBride, EPA headquarters accountant
Charles Young, and the Plaintiff's expert certified public
accountant, Wiley Wright, all testified at length as to the
integrity, accuracy, and reliability of the EPA computer systems
and printouts. In addition, Mr. Wright testified that he tested
whether the payroll computer printouts contained in Government's
Exhibits 2 and 3 accurately reflected the data stored in the IFMS
computer system by comparing the information contained in those
printouts to the payroll data stored in the IFMS system. For each
of the instances checked, the payroll information was identical
to that separately generated and printed from the data stored in
the IFMS system. For these reasons, the Court finds those
portions of Plaintiff's Exhibit 2 and 3 dealing with payroll
IV. RESPONSE COSTS:
At the conclusion of the hearing, the Court directed the
parties to file briefs addressing each item of cost and detailing
the evidence, or lack thereof, with respect to each item.
However, in Mr. Gurley's Post-trial Brief (Doc. No. 105) and
Proposed Findings and Conclusions (Doc. No. 106), he devotes well over half of his brief to a re-argument of
the defenses of statute of limitations and lack of subject matter
jurisdiction. Mr. Gurley concedes, on the second page of his
fifty page brief, that he "recognizes full well that this court
has previously rejected his defenses of limitations and failure
to properly commence a civil action." (Def.'s Post-trial Br. at
2.) This Court has found these arguments to be without merit on
more than one occasion*fn7 and will not address them again.
With respect to the Gurley Pit Site, the government seeks the
following response costs:
1) EPA Region 6 and Headquarter payroll expenses;
2) EPA Region 6 and Headquarter travel expenses;
3) EPA indirect costs,*fn8 4) expenditures for contracts;
5) expenditures under EPA's interagency agreement
with the Army Corps of Engineers;
6) funds provided by EPA to the State of Arkansas;
7) funds provided to the Agency for Toxic Substances
and Disease Registry ("ATSDR");*fn9
8) prejudgement interest; and
9) Department of Justice (DOJ) enforcement costs.
Specifically, the Cost Summary*fn10
GURLEY SITE 06-39
EPA Principal from 3-1-90 $9,392,225.67
to 6-30-01 (no ATSDR)
INTEREST (from 9-10-90 4,945,957.85
to 7-24-02 (no ATSDR)
TOTAL Gurley Pit Site $13,986,191.94*fn11
(after withdrawal of ATSDR costs) SOUTH 8TH STREET 06-H8
EPA Principal from inception $5,596,093.34
to 6-30-01 (no ATSDR)
INTEREST from 4-24-96 1,822,693.33
to 7-24-02 (no ATSDR)
TOTAL South 8TH Street Site $6,980,849.48
COMBINED TOTAL FOR GURLEY PIT SITE
AND SOUTH 8TH STREET SITE $20,967,041.42
(unreimbursed and past costs)
V. OBJECTIONS TO RESPONSE COSTS:
With respect to his objections to the government's claim, the
only costs Mr. Gurley challenged in his post-trial brief are:
(1) enforcement costs related to both the Gurley Pit
Site and South 8th Street Site incurred after the
bankruptcy petition date, July 26, 1995.
(2) prejudgment interest with regard to both Sites
accruing or incurred after the date that Mr. Gurley
filed for bankruptcy, July 26, 1995.
(3) costs rejected by Philip Marino, Mr. Gurley's
(4) payroll costs questioned by the Court.
(5) contract costs sought by the government at the
South 8th Street Site.
Based on Mr. Marino's opinion as to the total billings verified,
Mr. Gurley concludes that he "can only be liable for
$5,591,824.60 for the Gurley Pit Site and $3,514,077.88 for the
South 8th Street Site. (Plf.'s Post-trial Br., Exhibit 2 at 577-78). Mr. Gurley
also argues that the damage is divisible and that the amounts he
should pay must be reduced by twenty-five percent.
VI. FINDINGS AND CONCLUSIONS ON COSTS:
Section 107(a) of CERCLA authorizes the United States or a
state to recover from liable parties "all costs of removal or
remedial action incurred by the United States Government or a
State . . . not inconsistent with the national contingency plan."
42 U.S.C. § 9607(a). "Because the instant case is one brought by
one of the three parties*fn12 listed in § 9607(a)(4)(B), its
costs are presumed to be consistent with the NCP." United States
v. Findett Corp., 75 F. Supp.2d 982 (E.D. Mo. 1999), aff'd,
220 F.3d 842 (8th Cir. 2000) (citing Minnesota v. Kalman W.
Abrams Metals, Inc., 155 F.3d 1019, 1025 (8th Cir. 1998).
"In an action brought by any one of those three parties, the
burden of proof as to inconsistency is on the defendant. A
defendant `must demonstrate that the government's response action
giving rise to the particular cost is inconsistent with the
NCP.'" United States v. Findett Corp., 75 F. Supp.2d at 990
(citing United States v. Northeastern Pharm. & Chem. Co.,
810 F.2d 726, 747 (8th Cir. 1986), cert. denied, 484 U.S. 848
(1987)). CERCLA "contemplates that those responsible for
hazardous waste at each site must bear the full cost of cleanup
actions and that those costs necessarily include both direct
costs and a proportionate share of indirect costs attributable to
each site." Findett, 75 F. Supp.2d at 993.
As previously noted, if the government's response actions are
in harmony with the NCP, the costs incurred pursuant to those
actions are recoverable from liable parties. Findett,
220 F.3d 842, 849-50 (8th Cir. 2000); United States v. Hardage,
982 F.2d 1436, 1441 (10th Cir. 1992), cert. denied, 510 U.S. 918
(5th Cir. 1993). Response costs that are not inconsistent
with the NCP are conclusively presumed to be reasonable and therefore recoverable
under CERCLA. See United States v. Dico, 266 F.3d 864, 879
(8th Cir. 2001); United States v. Findett Corp., 220 F.3d
at 849; United States v. Hardage, 982 F.2d at 1441-1443; United
States v. Northeastern Pharm. and Chem. Co., Inc., 810 F.2d at
747-48 (8th Cir. 1986); United States v. Vertac Chem.
Corp., 33 F. Supp.2d 769, 777 (E.D. Ark. 1998); United States
v. Gurley, 788 F. Supp. at 1481. The focus of the NCP is on
procedures for the selection of response action rather than on
"costs", per se:
The NCP regulates choice of response action, not
costs. 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 arbitrary
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 therefore
Hardage, 982 F.2d at 1443 (emphasis in the original).
The defendant's expert in Findett argued the EPA submitted
insufficient documentation to substantiate its response costs.
The district court, however, concluded that the government had
provided sufficient evidentiary support for its motion for
partial summary judgment on response costs. As in this case:
[The government] provided itemized cost summary
reports of its payroll costs. Those reports include
the names of employees who did Site-related work, the
year and the pay period in which they did that work,
the hours that they worked, and the corresponding
payroll amounts. . . . The summaries list the
employee who traveled, the travel voucher number, the
cost of the travel, and the Treasury schedule
confirming payment of that cost. With respect to the
EPA contractors who worked on the Site, the
government has provided contract summaries listing
the contractor, contract number, and total contract
costs. The summaries set forth the voucher and
Treasury schedule numbers supporting those costs and
confirming payment thereof.
Findett, 75 F. Supp.2d at 991. On appeal, the Eighth Circuit
affirmed holding that EPA had submitted sufficient evidence to support its claim for recovery
of response costs. United States v. Findett, 220 F.3d at
849-50. The Appeals Court reasoned that the alleged missing
documentation noted in the defendant's expert report was in fact
provided by the EPA to the defendant and the detail sought (for
example, progress reports from contractors, audit reports of
contacts) was only peripherally related to whether the response
costs were actually incurred. Findett, at 849.
During the course of the trial of the issue of costs, the
United States presented testimony from ten witnesses:
(1) Dennis McBride, an EPA accountant who certified the
accuracy and the adequacy of the documentation of the EPA costs;
(2) Cheryl Young, a Corps of Engineers accountant who certified
the accuracy and adequacy of the Corps of Engineers costs;
(3) Charles Young, an EPA accountant and expert who testified
as to the accuracy and reliability of the EPA's IFMS and EPA's
method of calculating indirect costs and annual allocation costs;
(4) Thomas Achinger, an ATSDR accountant who testified
regarding the ATSDR costs incurred;
(5) Wiley Wright, an expert Certified Public Accountant ("CPA")
who testified regarding the accuracy and adequacy of the
documentation of the government's costs;
(6) Todd Hill, a Corps of Engineer project manager who
testified regarding the work performed by the Corps of Engineers
at the Gurley Pit Site;
(7) Vincent Malott, an EPA project manager who testified
regarding work performed at the South 8th Street Site;
(8) Robert Griswold, a former EPA project manager who testified
as to the work performed by the EPA at the Gurley Pit Site;
(9) William Kime, an expert CPA who testified by video
deposition as to the accuracy and the adequacy of the
documentation of the Department of Justice ("DOJ") costs; and
(10) David Weeks, a former EPA project manager who testified by
deposition as to work performed at the South 8th Street Site.
The United States supported its costs by a variety of documents
including time sheets, travel vouchers, contract invoices,
interagency agreement bills and cooperative agreement payment
requests. Contract payments were further documented with Project
Officer Invoice Approvals and proof of payment, which included
the amount and date paid.
The United States notes that although Mr. Gurley did not seek
discovery as to the costs incurred by the United States, the
United States copied its certified cost packages for the Gurley
Pit Site and South 8th Street Sites (approximately 26,000
pages) and forwarded them to counsel for Mr. Gurley well before
the hearings. Mr. Gurley presented testimony from one witness,
Phillip Marino, an accountant who testified that he accepted
certain of Plaintiff's costs but rejected others.
The Court notes initially that Mr. Gurley did not call a single
witness to testify that the response actions selected or
implemented at the Gurley Pit or South 8th Street Sites were
arbitrary, capricious, or not otherwise in accordance with law.
In contrast, witnesses for the United States testified that the
response actions selected and implemented at the Gurley Pit Sites
and the South 8th Street Sites were cost effective or cost
substantially less than other remedies that could have been chosen or performed at the Sites. The Court specifically
finds that Mr. Gurley failed to meet his burden to show the
response actions at the Gurley Pit Site or the South 8th
Street Site were inconsistent with the NCP. This failure of proof
is critical. In spite of this finding, the Court will examine
each of the five objections raised by Mr. Gurley:
1. Costs incurred after bankruptcy petition date: Mr. Gurley
argues that if the Court were exercising its bankruptcy
jurisdiction and were to determine the government had an
allowable claim, the amount of that claim would be calculated as
of Gurley's date of filing his bankruptcy petition July 26,
1995 (citing 11 U.S.C. § 502(b)).*fn13 Thus, Mr. Gurley
argues that the Government's claim, calculated as of the petition
date, cannot include "unmatured interest, legal fees and
collection costs" accruing or incurred after the petition date
(Def.'s Post Tr. Br. at 29).
The Court does not interpret Section 502(b) to mean that legal
fees, unmatured interest and collection costs are not recoverable
after the filing of the bankruptcy petition. The Court interprets
the statue to prohibit the recovery of costs for new work at a
site, such as dirt removal, drilling, the erection of barriers,
etc., without the filing of a new claim. Unmatured interest,
legal fees and collection costs related to work already performed
2. Prejudgment Interest after the filing of the bankruptcy
The United States argues Mr. Gurley has not challenged the
accuracy or the adequacy of the documentation of the
$6,768,921.00 in prejudgment interest incurred by the United
States. Mr. McBride testified that from September 10, 1990,
through July 25, 2002, prejudgment interest of $4,945,957.85
accrued on costs incurred at the Gurley Pit Site. He further
testified that from April 24, 1996, the date that the United States filed its proof
of claim related to the South 8th Street Site, to July 24,
2002, prejudgment interest of $1,822,963.33 accrued on costs
incurred at the South 8th Street Site, for a total of
$6,768,921.00 at both sites.
Section 107(a) of CERCLA provides that the government is
entitled to interest which shall "accrue from the later of (i)
the date payment of a specified amount is demanded in writing, or
(ii) the date of the expenditure concerned." See General Elec.
Co., v. Litton Bus. Sys., Inc., 715 F. Supp. 949, 959 (W.D. Mo.
1989), aff'd, 920 F.2d 1415 (1990) (court awarded prejudgment
interest as response costs); United States v. Township of
Brighton, 153 F.3d 307, 321 (6th Cir. 1998) (prejudgment
interest recoverable); United States v. R.W. Meyer, Inc.,
889 F.2d 1497, 1505, cert. denied, 494 U.S. 1057 (1990) (affirmed
district court award to government of prejudgement interest).
Based upon these findings and the case law, the Court finds the
United States is entitled to prejudgment interest in the amounts
3. Costs rejected by Philip Marino:
Mr. Marino, Mr. Gurley's accountant, disputes certain costs due
to lack of authorization; costs that are inadequate or contain
unrelated backup documents; costs where the amounts on the backup
documentation did not agree with the invoice or summary listing;
costs where no wage rates for the payroll hours were provided;
costs which were illegible; costs which were duplicative; costs
where the site was not identified; and invoices whether there was
no connection to the EPA's summary of the billings. However, Mr.
Marino did not testify that these deficiencies made him question
whether the expenses were actually incurred or that the response
action taken was arbitrary, capricious, and not consistent with
As previously noted, the Eighth Circuit in United States v.
Findett, 220 F.3d 842 (8th Cir. 2000) affirmed the holding of the district court that EPA had
submitted sufficient evidence to support its claim for recovery
of response costs. The Court reasoned that the alleged missing
documentation noted in the defendant's expert report was in fact
provided by the EPA to the defendant and the detail sought (for
example, progress reports from contractors, audit reports of
contacts) was only peripherally related to whether the response
costs were actually incurred. See Findett, 220 F.3d at 849.
This Court finds, from the testimony of the witnesses for the
United States and the 26,000 pages of underlying documentation,
the summaries of the costs, and the lack of challenge by Mr.
Gurley, that the United States made a prima facie case and Mr.
Gurley has failed to show the costs are inconsistent with the
4. Payroll Costs questioned by the Court:
Mr. McBride testified that from March 1, 1990, through July 31,
2001, the EPA incurred regional payroll costs of $189,736.00 and
headquarters payroll costs of $5,514.00, for a total of
$195,251.00 in connection with the Gurley Pit Site. Mr. McBride
indicated that from inception through June 30, 2001, the EPA
incurred regional payroll costs of $388,067.00, and the
headquarters payroll costs of $9,442.00 for a total off
$397,509.00 for the South 8th Street Site. Thus, the EPA
incurred a combined total of $592,761.00 in un-reimbursed
regional and headquarters payroll costs at the Gurley Pit and
South 8th Street Sites.
As previously noted in the discussion of the admissibility of
these costs, the Court noted that all of the accountants who
testified, including Mr. Gurley's, verified that the EPA payroll
charges were accurate and reasonable. Significantly, Mr. Marino,
Mr. Gurley's accountant, did not propose the rejection of any of
the EPA's payroll charges for lack of wage rate. On
cross-examination, he stated: Q. Yet when you looked at it, the regional payroll
costs, you did not reject any of them for that code
D, did you?
Q. Why was that?
A. Because there was a document that had the total
number of dollars for say Mr. Jones worked eight
hours on Gurley Pit, and there would be an extension
of how much he was paid, and that work paper or
printout, the totals on those matched the summary
listings. And so even though I wasn't able to verify
whether those dollar amounts were accurate, I tested
some of them to see if they seemed outrageous, as far
as rate. But I didn't have any way of really
verifying what that person's monthly or annual or
hourly rate was.
Q. And it was for that same reason that you did some
testing and the dollars passed the reasonableness
test in your own mind, isn't that right?
(Tr. Hrg. on Costs, Vol. 3, at 517-18, July 4, 2002). The Court
finds the payroll summaries are sufficiently supported by the
underlying documentation and were sufficiently randomly tested by
witnesses for both parties. Based on these witnesses' testimony,
the payroll summaries accurately reflect the costs incurred in
payroll expenses and are not inconsistent with the NCP.
5. Contract costs at South 8th Street for the two month
period before CERCLA became effective:
Mr. Gurley argues that the government seeks contract costs from
October 1, 1980 through November 30, 1990 on the South 8th
Street Site despite the fact that CERCLA did not become law until
December, 1980. There is one document concerning Remedial
Contract, CH2M Hill 68-01-6692, which shows a date of service
from 10/1/80 to 9/30/85 in the amount of $52,931.71. This time
period includes two months of work before CERCLA was enacted. The
period time of this contract covered 59 months. Since two of the
months were before the enactment of CERCLA, the Court will deduct $1,794.30 ($52,931.71 divided by 59 equals
$897.15 times 2 months equals $1794.30) from the total cost of
$52,931.71 for a revised total of $51,137.41.
VII. JOINT & SEVERAL LIABILITY AT SOUTH 8TH STREET
Mr. Gurley argues that because the United States was a
Potentially Responsible Party ("PRP") in this matter, the
government should be limited to a claim for contribution under
Section 113 of CERCLA, 42 U.S.C. § 9613(f) rather than a joint
and several liability claim under Section 107,
42 U.S.C. § 9607(a)(3). The United States responds that the authority to
impose joint and several liability on liable parties is an
integral element of the special role that CERCLA carves out for
the United States and the EPA in protecting the public from the
release of hazardous substance.
Under Section 107(a)(4)(A) of CERCLA, Congress authorized the
United States, or a state or an indian tribe to recover, from
responsible parties, "all costs of removal or remedial action
incurred . . . not inconsistent with the national contingency
plan. 42 U.S.C. § 9607(a)(4)(A). In contrast, Section
107(a)(4)(B) of CERCLA, Congress only authorized any other party
to recover other necessary costs of response incurred consistent
with the national contingency plan. 42 U.S.C. § 9607(a)(4)(B).
The United States cites legislative history of CERCLA and argues
that it shows that Congress intended that the United States is
entitled to seek joint and several liability regardless of
whether it might also be a PRP. The United States relies on a
Congressional comment made during the enactment of Section
113(f), the contribution provision of CERCLA, where Congress
specifically considered and rejected defendant's argument:
This section does not affect the right of the United
States to maintain a cause of action for cost
recovery under Section 107, or injunctive relief
under Section 106, whether or not the United States
was an owner or operator of a facility or a generator of waste at the site.
H.R. Rep. No. 99-253, pt. 1 at 79-80 (1985) reprinted in
1986 U.S.C.C.A.N. 2835, 2861-62. Numerous cases hold that the United
States is entitled to have private parties held jointly and
severally liable under Section 107 of CERCLA, even in certain
federal agencies are themselves PRPs. See State of California
Dep't of Toxic Substances Control v. Alco Pacific, Inc.,
217 F. Supp.2d 1028, 1036 (C.D. Cal. 2002); State of New York v.
Moulds Holding Corp., 196 F. Supp.2d 210, 214-15 (N.D.N.Y.
2002); United States v. Chrysler Corp., 157 F. Supp.2d 849,
858-59 (N.D. Ohio 2001); United States v. Manzo, 182 F. Supp.2d 385
(D.N.J. 2001); United States v. Friedland, 152 F. Supp.2d 1235,
1246-49 (Colo. 2001); United States v. Hunter,
70 F. Supp.2d 1100, 1104-07 (C.D. Cal. 1999); United States v.
Wallace, 961 F. Supp. 969 (N.D. Tex. 1996); United States v.
Kramer, 757 F. Supp. 397
, 413-417 (D.N.J. 1991); United States
v. Western Processing Co., 734 F. Supp. 930 (W.D. Wash. 1990).
The cases cited by Mr. Gurley*fn14 involve private
parties, and not the United States, a state or an indian tribe.
Mr. Gurley's most recent submission refers to a holding that
private party plaintiffs who had entered into a Consent Decree
with the United States and the State of Arkansas in the cases of
United States v. Aircraft Service Int'l, Inc., No. J-C-98-362
(E.D. Ark.) and Arkansas Dep't of Pollution Control and Ecology
v. Aircraft Service Int'l, Inc., No. J-C-98-363 (E.D. Ark.) were precluded from bringing joint and several claims
under Section 107 of CERCLA against non-settling PRPs. These
cases are clearly distinguishable from the cases brought by the
United States. Given the plain language of the statute, the
legislative history of CERCLA and well-established precedent, Mr.
Gurley must be held jointly and severally liable to the United
States under CERCLA at the South 8th Street Site.
Finally, Mr. Gurley argues that he is not jointly and severally
liable because the Gurley operation dumped its waste primarily in
the oily sludge pit at the Site. The United States responds that
Mr. Gurley has not met his burden to show either distinct harms
or a reasonable basis for apportioning a single harm to public
health and the environment at the South 8th Street Site. See
e.g. United States v. Hercules, 247 F.3d 706, 716-18 (8th
Cir. 2001); Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930,
939 n. 4 (8th Cir. 1995). The evidence at trial revealed that
although the oily sludge pit located within Area 2 at the Site
contained the highest concentration of hazardous substances,
lower concentrations of similar hazardous substances were located
throughout Areas 1, 2, and 3 of the Site. Both Columbus Burroughs
and Lee Fielder testified at the trial on liability that there
was substantial flooding at the Site during the 1960s which
caused commingling of contaminants (Liability Tr. at 39). Dr.
Eugene Meyer testified that due to the commingling of waste from
the Gurley operation and other sources it was impossible to
determine whose hazardous substances were released at which
locations at the Site. Mr. Gurley offered no evidence at trial
that hazardous substances found beyond the oily sludge pit but
within other areas of the Site were distinct from similar
hazardous substances dumped by the Gurley operation. Nor did he
present any evidence that the hazardous substances dumped by his
operation did not migrate throughout the Site. Thus, the Court
finds that Mr. Gurley did not meet his burden to show a preponderance of concrete and specific evidence of a
divisibility of harm at the South 8th Street Site.
It is, therefore, ORDERED (1) the payroll documents referenced
in Government Exhibits 2 and 3, are admitted into evidence in
this case; (2) the United States is entitled to response cost at
the Gurley Pit Site in the amount of $13,986,191.94, plus
interest from July 24, 2002 until the date of judgment, plus post
judgment interest at the rate of 1.23% until paid; (3) the United
States is entitled to response costs at the South 8th Street
Site in the amount of $6,979,055.18*fn15 plus interest from
July 24, 2002 until the date of judgment, plus post judgment
interest at the rate of 1.23 % until paid, plus a declaratory
judgment for all future response costs and interest at the South
8th Street Site; and (4) the State of Arkansas is entitled to
a declaratory judgment for all future response costs incurred by
the State at the South 8th Street Site. Judgment shall be
entered in accordance with this Memorandum Opinion.