U.S. v. FINDETT CORP.

No. 4:97CV1557 CDP

75 F. Supp.2d 982 (1999) | Cited 0 times | E.D. Missouri | September 15, 1999

MEMORANDUM AND ORDER

In this civil action, brought under § 107(a) of theComprehensive Environmental Response, Compensation, and LiabilityAct ("CERCLA"), 42 U.S.C. § 9607(a), as amended by the SuperfundAmendments and Reauthorization Act of 1986, plaintiff the UnitedStates of America seeks to recover response costs that itclaims to have incurred, and will incur, in connection with ahazardous waste site located in St. Charles, Missouri. Currentlybefore the Court are the following motions: (1) the government'smotion for partial summary judgment on liability againstdefendant Findett Corporation, (2) the government's motion forpartial summary judgment on response costs against Findett, (3)Findett's cross-motion for partial summary judgment on responsecosts, and (4) Findett's motion for sanctions. All the motionsare fully briefed. For the reasons set forth below, the Courtwill grant the government's motions and deny Findett's motions.

I. Factual Background

The hazardous waste site in question is known as theFindett/Hayford Bridge Site. The Site consists of three parcelsof land: property currently owned by defendant FindettCorporation, property formerly owned by Findett and now owned bythe Cadmus Corporation (also a defendant here), and propertyimmediately south of the land occupied by Cadmus.

Findett was incorporated in 1962 under the name Findett ServiceCompany, and changed its name to Findett Corporation in 1974.From 1962 through at least 1974, Findett was engaged in thebusiness of recycling and recovering manufacturing fluids, suchas heat transfer fluids, hydraulic fluids, and solvents. Some ofthose fluids contained polychlorinated biphenyls ("PCBs"), whichare now known to be hazardous. Findett disposed of some of thewaste generated by its operation, including waste containingPCBs, in an open pit or "quench pond" located on its property.Soil analysis shows that the Findett Site is contaminated withPCBs and volatile organic compounds ("VOCs").

EPA's involvement with the Site began in the early 1980's.After EPA's initial investigations indicated the existence ofcontamination at the Site, the agency conducted furtherinvestigations, including an investigation to identify partiespotentially responsible for the contamination, and a remedialinvestigation to more fully define the nature and extent of thecontamination. EPA also conducted a feasibility study in which itevaluated alternatives to remediate the contamination.

On May 14, 1990, the government and Findett entered into aconsent decree in United States v. Findett Corp., No.90-0417-C-61, an action also brought in this district. Under theterms of that decree, Findett agreed to perform certain remedialactions, including installing several ground water extractionwells, treating ground water using "air stripping," dischargingtreated ground water, and removing contaminated soil. The consentdecree, by its terms, did not operate as a determination ofliability with respect to Findett, and did not prohibit thegovernment from bringing an action based on Findett's liabilityfor remedial action for matters not addressed in the decree.Since the entry of the consent decree, EPA has reviewed andoverseen the work performed by Findett under the decree,including reviewing design documents, inspecting field work, andmonitoring ground water.

Findett states that it ceased its recycling operations in 1976,and that in 1994, it underwent a "major" transformation followingthe purchase of a 100% ownership interest by Manuel Joaquim. Atthe time he made that acquisition, Joaquim already owned 3,400 ofthe company's shares, which he had purchased in 1990.

The government initiated this lawsuit on July 25, 1997. In itscomplaint, the government named a total of eight defendants,including Findett. The other seven defendants are: ACFIndustries, Inc., General Motors Corporation, the Goodyear Tireand Rubber Company, Mallinckrodt Chemical, Inc., MonsantoCompany, Cadmus, and Milton Tegethoff. As mentioned above, thegovernment is seeking to recover all of the response costs thatit claims to have incurred, and that it will incur, in connectionwith the Site. Given that the government's involvement with theSite has been quite lengthy, some of those costsdate as far back as 1980. The government asserts that throughJune 30, 1998, the costs, including interest, total $3,293,909.

II. Discussion

In determining whether summary judgment should issue pursuantto Rule 56(c) of the Federal Rules of Civil Procedure, the Courtmust view the facts, and the inferences from those facts, in thelight most favorable to the non-moving party. The moving partybears the burden of both establishing the absence of a genuineissue of material fact and showing that it is entitled tojudgment as a matter of law. Celotex Corp. v. Catrett,477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); MatsushitaElec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Once the movingparty has met this burden, however, the non-moving party may notrest on the allegations in its pleadings, but by affidavit orother evidence must set forth specific facts showing that agenuine issue of material fact exists. Fed.R.Civ.P. 56(e). If thenon-moving party bears the burden of proof at trial, summaryjudgment is warranted if the non-movant is unable to make ashowing sufficient to establish the existence of an elementessential to its case. Lujan v. National Wildlife Fed'n,497 U.S. 871, 884, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).

A. The Government's Motion for Partial Summary Judgment as to Liability

The Comprehensive Environmental Response, Compensation, andLiability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., was enactedin 1980 "in response to the serious environmental and healthrisks posed by industrial pollution." United States v.Bestfoods, 524 U.S. 51, 118 S.Ct. 1876, 1881, 141 L.Ed.2d 43(1998). CERCLA gives the Environmental Protection Agency ("EPA")"broad authority to direct clean-up operations prior to a finaljudicial determination of the rights and liabilities of theparties affected." United States v. Dico, Inc., 136 F.3d 572,574 (8th Cir. 1998) (internal quotation marks omitted). Thestatute authorizes the EPA to bring an action in a federaldistrict court to recover from responsible parties the removaland remediation costs that the government has incurred inconnection with responding to the release or threatened releaseof hazardous substances from disposal or treatment facilities orsites. Id. (citing 42 U.S.C. § 9607(a)).

In an action brought by the government against a private party,the key statutory section is 42 U.S.C. § 9607, which sets forth"the scope of the liabilities that may be imposed on privateparties and the defenses that they may assert." Key Tronic Corp.v. United States, 511 U.S. 809, 814, 114 S.Ct. 1960, 128 L.Ed.2d797 (1994); 42 U.S.C. § 9607. The statute identifies four classesof "responsible persons" liable for response costs:

(1) the owner and operator of a vessel or a facility,

(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,

(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and

(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance.

42 U.S.C. § 9607(a)(1)-(4). The statute further provides that"notwithstanding any other provision or rule of law," a"responsible person" shall be liable in an actionbrought by the government for "all costs of removal or remedialaction . . . not inconsistent with the national contingency plan["NCP"],"1 including interest thereon. 42 U.S.C. § 9607(a).Thus, to establish liability under § 9607(a), the government mustshow (1) that Findett is a "responsible person" within themeaning of the statute, (2) that the Findett Site is a"facility," (3) that there has been a release or threatenedrelease of a hazardous substance or substances from the Site, and(4) that the government has incurred response costs as a result.See United States v. Aceto Agric. Chems. Corp., 872 F.2d 1373,1378-79 (8th Cir. 1989).2

CERCLA is a strict liability statute, Control Data Corp. v.S.C.S.C. Corp., 53 F.3d 930, 936 (8th Cir. 1995), with only alimited number of statutorily-defined defenses available. In anaction brought under § 9607, an otherwise liable party may avoidliability only if it can establish by a preponderance that therelease or threatened release of the hazardous substance orsubstances and the resulting damages were caused "solely" by oneor more of the following: an act of God, an act of war, or,subject to certain limitations, an act or omission of a thirdparty. Section 9607(b); see B.F. Goodrich Co. v. Murtha,958 F.2d 1192, 1198 (2d Cir. 1992). ("Potential affirmative defensesare limited to those listed in § 9607(b)").

Findett concedes in its brief in opposition to the government'ssummary judgment motion that the government has established "allthe elements necessary to present a prima facie case ofliability under CERCLA against Findett." Findett contends,however, that genuine issues of material fact remain as to thefollowing three issues: (1) whether the government's claim isbarred by the statute of limitations, (2) whether a third partyother than Findett is liable under § 9607(b), and (3) whether thegovernment has already recovered costs in excess of those that ithas incurred consistent with the NCP. The record indicates thatthe parties have more fully developed the third issue in theirbriefs on the government's motion for partial summary judgment oncosts, and the Court will therefore address the issue in thatsection of this opinion.

Findett's first argument is that this action is barred by thesix year statute of limitations found in 42 U.S.C. § 9613(g)(2).That subsection provides that in the case of a remedial treatmentaction, an "initial action" for the recovery of the costsreferred to in § 9607 must be brought "within 6 years afterinitiation of physical on-site construction of the remedialaction." 42 U.S.C. § 9613(g)(2). The statute further providesthat in any such initial action, "the court shall enter adeclaratory judgment on liability for response costs ordamages that will be binding on any subsequent action or actionsto recover further response costs or damages." Id. Finally, thestatute provides that a "subsequent" action or actions under §9607 "may be maintained at any time during the response action,"or "must be commenced no later than 3 years after the date ofcompletion of all response action." Id.

The parties agree that if the instant action is a "subsequent"action within the meaning of the statute, it is not time-barred,as response action at the Site is ongoing. Findett, however,contends that this action is, in fact, an "initial" action. Thegovernment disagrees, arguing that the case that ended in theentry of the May 14, 1990, consent decree was the initial action,and that this action is therefore a subsequent action. Findettresponds by pointing out that no declaratory judgment as toliability was entered in the earlier case. Findett argues thatunder the terms of § 9613(g)(2), an action cannot be an "initial"action if no such judgment is entered.

Two courts of appeals — although not the Eighth Circuit, whichhas never addressed the issue — have described § 9613(g)(2)'slanguage as rendering the entry of a declaratory judgment"mandatory." See Kelley v. E.I. DuPont de Nemours and Co.,17 F.3d 836, 844 (6th Cir. 1994); Dent v. Beazer Materials andServs., Inc., 156 F.3d 523, 531 (4th Cir. 1998) (quotingKelley, 17 F.3d at 844). However, neither was considering thequestion presented here. In Kelley, for example, the defendantsargued to the Sixth Circuit that the district court erred ingranting declaratory relief to cover future clean-up costs infavor of the State of Michigan, contending that such costs werespeculative. See 17 F.3d at 844. Similarly, in Dent, theFourth Circuit was faced with the issue of whether the districtcourt erred in entering a declaratory judgment as to futureresponse costs on the basis of evidence adduced prior tocompletion of administrative proceedings. See 156 F.3d at 531.

The only court of appeals to squarely confront the argumentraised by Findett here is the Seventh Circuit, which rejected it.United States v. Navistar Int'l Trans. Corp., 152 F.3d 702,708-10 (7th Cir. 1998). That court found that the purpose of §9613(g)(2) was simply to avoid the need to relitigate liabilityquestions,3 and concluded that there was "nothing to indicatethat a declaratory judgment is the only permissible means toresolve an `action for recovery of the costs referred to insection 9607.'" Id. at 709-10 (quoting § 9613(g)(2)). Assupport for its position, the court pointed to legislativehistory plainly indicating that the sole purpose of the section'sdeclaratory judgment language is "`to conserve judicial time andresources,'" id. at 709 (quoting H.R.Rep. No. 99-253, pt. 3, at21 (1985), reprinted in 1986 U.S.C.C.A.N. 3038, 3034).

While the Court recognizes that "shall" generally means "must,"cf. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 432 n. 9,115 S.Ct. 2227, 132 L.Ed.2d 375 (1995) (observing that "legalwriters sometimes use, or misuse, `shall' to mean `should,'`will,' or even `may'"), it believes that the Seventh Circuit hasthe better argument with respect to § 9613(g)(2). First of all,the Court is cognizant of the general principle that statutes oflimitations are to be construed in favor of the government. See,e.g., United States v. Telluride Co., 146 F.3d 1241, 1248 (10thCir. 1998). More importantly, however, the Court believes thatreading § 9613(g)(2) as mandating the entry of a declaratoryjudgment would run counter to CERCLA's fundamental purposes,i.e., encouraging quick responses to hazardous waste sites andplacing the costs therefor on those responsible for the hazardousconditions. See Control Data Corp., 53 F.3d at 936. Findett'ssuggested reading of the statutewould have the perverse effect of promoting litigation bydiscouraging the government and potentially "responsible parties"from entering into consent decrees. Because the government wouldinsist, under Findett's reading of § 9613(g)(2), on obtaining adeclaratory judgment of liability, a potentially "responsibleparty" otherwise amenable to entering into such a decree mightwell devote resources to litigation that would be better spent onclean-up. The Court finds that the government's suit is asubsequent action within the meaning of § 9613(g)(2), and,therefore, is not time-barred.

Even if the Court's interpretation of § 9613(g)(2) wereincorrect and the six year statute of limitation were to apply,the Court agrees with the government that this action would stillbe timely. Under a tolling agreement executed by Findett onOctober 7, 1996, the statute of limitations was tolled during theperiod October 21, 1996, through October 21, 1997. The governmentcontends that the unrebutted evidence shows that no "physicalon-site construction of the remedial action" took place prior toOctober 22, 1990.4 Findett disagrees, contending that "anumber of activities, consistent with the permanent remedies,were at the site prior to October 22, 1990." To support itsclaims, Findett refers the Court to the depositions of threeindividuals. However, Findett has not provided the Court withthose depositions5 or cited the particular pages on which therelevant statements appear.6 Findett has thus failed to "setforth specific facts showing that there is a genuine issue [onthe statute of limitations question] for trial." Rule 56(e),Fed.R.Civ.P. Moreover, the three activities (namely, conductingtopographic surveys, "laying out" a concrete pad "that was to beconstructed," and collecting deepwater ground samples) thatFindett alleges took place prior to October 22, 1990, could notpossibly constitute "physical on-site construction." SeeCalifornia v. Hyampom Lumber Co., 903 F. Supp. 1389 (E.D.Cal.1995) (setting forth a four part test for determining when agiven event constitutes physical, on-site construction, andholding that the installation of water and electrical hardwaremet that test); United States v. Akzo Nobel Coatings, Inc.,990 F. Supp. 897, 905-06 (explaining that Hyampom Lumber's testestablishes a floor, not a ceiling, and holding that thetriggering event must represent "an integral step in theimplementation of the permanent remedy"); cf. Navistar, 152F.3d at 705, 713 (placement of the first "lift" of clay to buildpermanent clay cap on landfill triggered statute).

Findett also seeks to invoke each of the three affirmativedefenses listed in § 9607(b). First, Findett argues that when itsstock was purchased by Manuel Joaquim in 1994, its responsibilityfor its past releases of hazardous substances ceased to exist.Second, Findett argues that its neighbor Cadmus was "a source ofthe hazardous substances" found on Cadmus' property. Third,Findett contends that "there are facts to show that flooding mayhave contributed to the contamination of the Findett Site bytransferring the hazardous materials from Cadmus." (Emphasis inFindett's brief.)

Findett points to no authority for the proposition that acorporation's potential CERCLA liability ceases when itsstock is sold to an individual who, at the time of purchase, isaware of contamination on property owned by the corporation. Thecases cited by Findett are inapposite. They deal with the issueof when CERCLA liability can be imposed on a corporate successor,which is not the issue here. See Black's Law Dictionary 1431(6th ed. 1990) (defining "successor" with reference tocorporations to mean "another corporation which, throughamalgamation, consolidation, or other legal succession, becomesinvested with rights and assumes burdens of first corporation").For example, two of the cases relied on by Findett, B.F.Goodrich Co. v. Murtha, 840 F. Supp. 180, 191 (D.Conn. 1993); andUnited States v. Petersen Sand & Gravel, Inc., 806 F. Supp. 1346,1350 (N.D.Ill. 1992), involved the issue of whether acorporation succeeds to the statutory liabilities of apredecessor sole proprietor. In the only Eighth Circuit case thatdefendant cites, United States v. Mexico Feed & Seed Co.,980 F.2d 478 (8th Cir. 1992), the court was faced with the questionof whether a corporation that purchased the assets of a waste oilhauling company was liable under CERCLA for clean-up of theacquired company's leaking oil tanks. The court of appeals heldin the negative, reasoning that the corporation was a larger,preexisting competitor of the hauling company, and that itpurchased the company's assets without knowledge of the tanks andprior to the company's being identified as a potentiallyresponsible party under CERCLA. Id. at 489. Here, Findett wasnot acquired by an existing corporation; rather, its stock waspurchased by an individual who knew of its environmentalliabilities.

Findett's arguments that Cadmus caused some of thecontamination at the Site and that flooding "most likely impactedthe distribution of surface contaminants" at the Site fall oftheir own force. As explained above, to avoid liability under §9607, Findett must prove by a preponderance that the release wascaused "solely" by an act of God, an act of war, or the act oromission of a third party. 42 U.S.C. § 9607(b). Findett does notcontend that its actions played no part in the release ofhazardous substances at the Site.

In sum, the Court finds that this action is not barred by thestatute of limitations, and that Findett has failed to raise agenuine issue of material fact with regard to the threeaffirmative defenses available under 42 U.S.C. § 9607(b). Thegovernment is entitled to summary judgment on liability.

B. The Government's Motion for Partial Summary Judgment on Costs

Following the filing of its motion for partial summary judgmenton liability, the government filed another motion for partialsummary judgment, this one on response costs. In that lattermotion, the government seeks reimbursement from Findett of$3,293,909 in response costs that it claims to have incurred inconnection with the Site. The three million dollar figureconsists of (1) the payroll and travel costs of EPA personnel,(2) EPA indirect costs (i.e., costs which, while not attributableto a specific Superfund site, are necessary to operate theSuperfund program, and which are allocated to a site based on thenumber of EPA employee hours charged to that site), (3) costs ofnumerous contracts entered into by EPA with contractors for,inter alia, analyzing environmental samples collected at theSite, quality assurance and quality control of analytical datafor the Site, remedial investigation and planning activities, andcollection and monitoring of ground water, (4) costs ofagreements entered into between EPA and the Missouri Departmentof Human Resources under which the state agency renderedmanagement and technical assistance with remedial investigationsand performed various oversight work, (5) prejudgment interestthat began accruing on September 27, 1996, the date of EPA'sdemand letter to potentially responsible parties seeking past andfuture costs, and (6) Department of Justice employeepayroll and travel costs and indirect costs.

As mentioned above, CERCLA provides that the federalgovernment, a state, or an Indian tribe can recover "all costs ofremoval or remedial action . . . not inconsistent with thenational contingency plan." 42 U.S.C. § 9607(a)(4)(A). In anaction brought by any one of those three parties, the burden ofproof as to inconsistency is on the defendant. United States v.Northeastern Pharm. & Chem. Co., 810 F.2d 726, 747 (8th Cir.1986) ("NEPACCO"), cert. denied, 484 U.S. 848, 108 S.Ct. 146,98 L.Ed.2d 102 (1987); Minnesota v. Kalman W. Abrams Metals,Inc., 155 F.3d 1019, 1025 (8th Cir. 1998); United States v.Chapman, 146 F.3d 1166, 1171 (9th Cir. 1998). A defendant "mustdemonstrate that the government's response action giving rise tothe particular cost is inconsistent with the NCP." United Statesv. Hardage, 982 F.2d 1436, 1442 (10th Cir. 1992) (citingNEPACCO, 810 F.2d at 748), cert. denied, 510 U.S. 913, 114S.Ct. 300, 126 L.Ed.2d 248 (1993); United States v. R.W. Meyer,Inc., 889 F.2d 1497, 1508 (6th Cir. 1989), cert. denied,494 U.S. 1057, 110 S.Ct. 1527, 108 L.Ed.2d 767 (1990).

Findett argues that the government is not entitled to the bulkof its claimed response costs because it has not provided Findettwith documents required by an EPA directive and by the NCP. TheCourt considers those arguments in turn.

Findett and its expert contend that in order to properlydocument its costs, the government must follow the guidelines setforth in a document known as Resource Management Directives 2550Dor "Financial Management of the Superfund Program" ("EPADirective 2550D") which was issued on July 25, 1988. According tochapter one of EPA Directive 2550D, the document's purpose is toexplain the financial management and accounting policies "withwhich all EPA offices must comply" to meet Superfund's accountingrequirements.

The problem with Findett's argument invoking EPA Directive2550D is that "CERCLA clearly states that `notwithstanding anyother provision or rule of law,' a private party will reimbursethe United States for all costs incurred." United States v.Chromalloy American Corp., 158 F.3d 345 (5th Cir. 1998); see42 U.S.C. § 9607(a). The Supreme Court has observed that inconstruing statutes, the use of a "notwithstanding" clause"clearly signals the drafter's intention that the provisions ofthe `notwithstanding' section override conflicting provisions ofany other section." Cisneros v. Alpine Ridge Group,508 U.S. 10, 18, 113 S.Ct. 1898, 123 L.Ed.2d 572 (1993).

In Chromalloy, the Fifth Circuit considered — and rejected —a contention quite similar to that raised by Findett here. Inthat case, Sequa Corporation, one of the defendants, challengedthe district court's failure to find that oversight costsincurred by the EPA were incurred in violation of the Economy Actof 1932. Sequa argued that the EPA failed to follow the EconomyAct's provisions in entering into an agreement with the Bureau ofReclamation ("BOR") under which BOR agreed to assist the EPA inoverseeing Sequa's clean-up efforts, and pointed out that theEPA-BOR agreement specifically identified the Economy Act as thestatutory authority for the transfer of funds and for theprojected oversight activities. See 158 F.3d at 350. The FifthCircuit disagreed, holding that the EPA's failure to follow theEconomy Act did not preclude imposing oversight costs on Sequa.In doing so, the court found § 9607(a)'s "notwithstanding"language "explicit," and stated that it "must be given effect."Id. at 351; see also Town of Munster v. Sherwin-Williams Co.,27 F.3d 1268, 1271 (7th Cir. 1994) (describing § 9607(a)'slanguage as "clear and unambiguous"). Several district courtshave reached the same conclusion. See, e.g., United States v.Wade, 577 F. Supp. 1326, 1336 (E.D.Pa. 1983) (explaining that §9607(a)'s "clear language" refuted defendants' attempt to linkliability under § 9607 to restrictions placed on Superfundexpenditures in § 9604); United States v. Reilly Tar & Chem.Corp., 546 F. Supp. 1100, 1117-18 (D.Minn. 1982) (citing §9607(a)'s "notwithstanding" language in rejecting defendant'scontention that the existence of a cooperative agreement betweenthe state and federal government — which § 9604(c)(3) requiresbefore the President can take any remedial actions — is aprerequisite to liability under § 9607); see also United Statesv. Hardage, 733 F. Supp. 1424, 1435 (W.D.Okla. 1989) (findingthat defendant provided no authority for its contention "that afact dispute exists as to whether certain costs were incurred incompliance with federal procurement laws and regulations"),aff'd in relevant part, 982 F.2d 1436 (10th Cir. 1992), cert.denied, 510 U.S. 913, 114 S.Ct. 300, 126 L.Ed.2d 248 (1993). TheCourt finds that § 9607(a)'s unambiguous language leads to theconclusion that even assuming the government failed to complywith EPA Directive 2550D, that failure does not bar its recoveryin this action.

Findett's other argument is that the government has notcomplied with the documentation requirements of the NCP itself.However, as Findett's own expert conceded at his deposition, theNCP simply does not contain any specific standards concerning thedocumentation of costs. Rather, it provides as follows:

During all phases of response, the lead agency shall complete and maintain documentation to support all actions taken under the NCP and to form the basis for cost recovery. In general, documentation shall be sufficient to provide the source and circumstances of the release, the identity of responsible parties, the response action taken, accurate accounting of federal state or private party costs incurred for response actions, and impacts and potential impacts to the public health and welfare and the environment.

40 C.F.R. § 300.160(a)(1) (1998) (emphasis added).7 Theregulation does not define "accurate accounting" and does notelaborate on what is meant by "sufficient" documentation.

In this case, the government has adduced a significant amountof evidentiary support for its motion for partial summaryjudgment on response costs. For example, it has provided itemizedcost summary reports of its payroll costs. Those reports includethe names of employees who did Site-related work, the year andthe pay period in which they did that work, the hours that theyworked, and the corresponding payroll amounts. The government hasalso provided cost summaries of Site-related travel costs. Thesummaries list the employee who traveled, the travel vouchernumber, the cost of the travel, and the Treasury scheduleconfirming payment of that cost. With respect to the EPAcontractors who worked on the Site, the government has providedcontract summaries listing the contractor, contract number, andtotal contract costs. The summaries set forth the voucher andTreasury schedule numbers supporting those costs and confirmingpayment thereof. The government has further provided affidavitsof all of the remedial project managers ("RPMs") who worked onthe Findett Site between May 1983 to the present. In thoseaffidavits, the RPMs reference specific contracts andcontractors, and attest that they, inter alia, oversaw the workdone by those contractors on the Site, reviewed monthly workassignment status reports submitted by the contractors, andmonitored the progress of the contractors on the Site throughtelephone conversations, face-to-face meetings, and on-siteinspections.

The type of documentation submitted by the government in thiscase hasbeen found acceptable by several courts of appeals. In UnitedStates v. Chapman, 146 F.3d 1166 (9th Cir. 1998), for example,the Ninth Circuit found that the EPA adequately documented thecosts incurred in its response action with "detailed costsummaries" and "declarations from EPA staff, attorneys,accountants, and supervisors" attesting to the work theyperformed and the time that they spent on the site. Id. at1171. Likewise, in Chromalloy, the Fifth Circuit upheld thedistrict court's grant of summary judgment in favor of thegovernment, concluding that the EPA's "detailed cost summaries"provided an "adequate" basis to find the government's oversightcosts reasonable and necessary. 158 F.3d at 352. Finally, inHardage, the Tenth Circuit agreed that documentation consistingof affidavits of EPA and Department of Justice employees chargedwith accumulating the response cost data, coupled with supporting"summaries of cost data," were sufficient to establish a primafacie case that the government was entitled to the responsecosts it had incurred. 982 F.2d at 1442-43. The Court finds thegovernment has adequately documented its response costs in thiscase as well.

Although Findett attacks the government's costs as inadequatelydocumented, the Court disagrees. As just explained, the type ofdetailed cost summaries submitted by the government here haveroutinely been found adequate to support its cost claims in othercases. Furthermore, even if Findett were correct in itscontention that more than that documentation is required, theCourt believes the government has provided more. As its chiefexample of a cost sought by the government which, it alleges, isinsufficiently supported, Findett points to CH2M Hill contractnumber 68-01-7251, under which EPA claims to have incurred$869,779.04 in response costs. Findett contends in its brief thatits accounting expert, Dale Jensen, "analyzed the documentationthat was produced to Findett and the other defendants by the EPAand found that there were no invoices, progress reports, treasuryschedules, or work assignments that related to the work done atthe Findett Site." Leaving aside the fact that Jensenacknowledged at his deposition that he never personally reviewedthe government's document production, the Court notes thatFindett's contention is squarely refuted by Attachment C toJensen's expert report, which indicates that the government infact provided for contract number 68-01-7251 the following:site-specific invoices indicating costs by cost type, invoiceapproval forms signed by the Site's RPM or other responsiblesite-specific EPA employee, proof of payment invoices (i.e.,Treasury schedules), and monthly progress reports.8

Findett's challenge to the government's annual or historicalallocation cost reports also fails. Findett claims that thegovernment provided only a "conclusory and self servingcertification" and a "statement by an EPA official" in support ofits allocation cost reports. The record is to the contrary.Through the annual allocation process, a contractor who works onmultiple sites under a single contract with the EPA allocates toa given site the costs of non-site-specific activities that arenevertheless necessary to support its site-specific responseactions (e.g., the rent on a regional office from which acontractor oversees work at several sites). Allocation to aparticular site is made on the basis of theratio of that site's direct site costs to the total cost of allsite and non-site activities. By totaling the site-specific costswith the allocated non-site specific costs, the governmentendeavors to develop the real total cost of the site workperformed by the contractor. The government offered a thoroughand detailed explanation of the allocation process, and the Courtconcludes that inclusion of the allocated costs is proper. CERCLA"contemplates that those responsible for hazardous waste at eachsite must bear the full cost of cleanup actions and that thosecosts necessarily include both direct costs and a proportionateshare of indirect costs attributable to each site." R.W. Meyer,Inc., 889 F.2d at 1504. For all of the above reasons, the Courtfinds that Findett has failed to raise a dispute of material factas to whether the government is entitled to the $3,293,909 thatit incurred in response actions at the Findett Site.

C. Findett's Cross-Motion for Summary Judgment on Response Costs

After the government filed its motion for partial summaryjudgment on response costs, Findett filed a cross-motion forsummary judgment with respect to the same issue. In that motion,Findett argues, as it did in its response to the government'smotion, that because the government failed to comply with EPADirective 2550D, it is not entitled to recover its response costsas a matter of law. Findett further asserts that even assumingthe government could establish its costs, summary judgment inFindett's favor is nevertheless warranted because the companylacks the ability to pay any judgment in excess of $601,550. Inthe preceding section, the Court considered fully and rejectedFindett's argument with respect to the EPA directive.Accordingly, in this section, it will address only Findett'sability to pay argument.

In support of its contention that the Court should grantsummary judgment in its favor based on inability to pay, Findettcites a September 30, 1997, memorandum entitled "General Policyon Superfund Ability to Pay Determinations" from the director ofEPA's Office of Site Remediation Enforcement. By its terms, thatdocument provides "a general policy framework" for settlements inwhich a party's financial ability to pay is a "significantconsideration." The policy's purpose is "to provide guidance" toEPA enforcement personnel, affected parties, and the public onthe information that EPA will look at and the steps that it willfollow in evaluating a potential settlement based on ability topay.

Findett's contention is flawed in several respects. First, thepolicy statement that Findett relies on is just that — a policystatement. As such, it does not have the force of law. Even if ithad such force, by its terms it relates to settlements, not fullylitigated disputes such as this one. As with any defendant in anylawsuit, Findett's ability to pay a judgment is irrelevant to adetermination that it is liable for any particular sum. SeeUnited States v. Charles George Trucking, Inc., 34 F.3d 1081,1087 (1st Cir. 1994). The Court will deny Findett's motion forpartial summary judgment.

III. Findett's Motion for Sanctions

Findett has also moved for sanctions against the government forits alleged failure to comply with Rule 26(a), Fed.R.Civ. P., andthe Case Management Order. The grounds of Findett's motion are asfollows: On January 15, 1998, after the government made itsinitial Rule 26(a) disclosures, counsel for defendant GeneralMotors Corporation ("GM") wrote to counsel for the government andstated, "Upon the generator defendants' review of the documents,several types of documents we expected to find in a complete sitefile appear to be missing." GM's counsel then listed tencategories of documents that she was seeking. The ninth categorylisted was "annual allocation reports and supporting Sitespecific invoices and treasury schedules." The government'scounsel, Daniel Jacobs,responded to the letter from GM's counsel on January 28, 1998.With respect to that ninth category, Jacobs stated,

The site-specific invoices and treasury schedules are not presently within the custody and control of EPA. The following annual allocation reports are presently within EPA's custody and control and will be produced: (1) Copies of three contracts with final annual allocation rates; (2) Documentation for provisional annual allocation rates for contracts 68-01-6769; 68-W9-0006 and 68-W9-0007.

Jacobs later clarified that "not presently within the custody andcontrol of EPA" meant that EPA "conducted a good faith search forthe requested documents in its Region VII offices and did notlocate them," and that the searchers had no expectation that thedocuments would be found in any other EPA office.9

On November 16, 1998, the government took the deposition ofDale Jensen, who, as mentioned above, is Findett's expertaccountant. At that deposition, Jensen challenged thegovernment's annual allocation costs on the ground that they werenot properly documented. On January 28, 1999, after the close ofdiscovery in this case, Jacobs wrote Findett's counsel, andadvised that the EPA had just advised him (Jacobs) that it hadlocated "work performed" and "invoice" documentation relating toannual allocation costs in Washington, D.C., and ResearchTriangle Park, North Carolina. Jacobs advised that it wouldproduce the documents (possibly subject to a protective order toprotect confidential business information) at "the earliestpracticable time."

In its motion for sanctions, Findett argues that theaforementioned sequence of events leads to the conclusion thatthe government either "intentionally" misled Findett and theother defendants or failed to timely conduct a good faith searchfor the requested documents. Findett contends that the Courtshould sanction the government for its belated production byexcluding any evidence in support of its claim for allocationcosts10 and awarding Findett the costs and attorney's feesthat it incurred in raising this matter.

Rule 26(a) of the Federal Rules of Civil Procedure requires aparty to provide to other parties, inter alia, "a copy of, or adescription by category and location of, all documents, datacompilations, and tangible things in the possession, custody, orcontrol of the party that are relevant to disputed facts allegedwith particularity in the pleadings." Rule 26(a), Fed.R.Civ.P.The rule further provides that a party shall make its initialdisclosures "based on the information then reasonably availableto it." Id. If, without "substantial justification," a partyfails to disclose information required by Rule 26(a), it shallnot be permitted to use that information at trial, unless itsfailure is harmless. Rule 37(c)(1), Fed.R.Civ.P.; see Finley v.Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir. 1996) ("Thesanction of exclusion is . . . automatic and mandatory unless theparty to be sanctioned can show that its violation of Rule 26(a)was either justified or harmless.").

The Court will deny Findett's motion for several reasons.First, it does not comply with Local Rule 3.04(A), whichprovides, "The Court will not consider any motion relating todiscovery and disclosure unless it contains a statement thatmovant's counsel has conferred in person or by telephone with theopposing counsel in good faith or has made reasonable efforts todo so. . . ." E.D.Mo. L.R. 3.04(A) (emphasis added). The Courtcould deny themotion on that basis alone. Second, there is no indication thatthe government acted in bad faith in making its disclosures, thatis, that it failed to turn over relevant documents then"reasonably available" to it. In its Rule 26(a) disclosures, thegovernment produced to defendants sixteen boxes containing 48,725pages of documents. Included in those documents was the EPA'sentire documentary record for the Site and a compilation of allcost documents relating to the Site. Third and finally, the Courtbelieves that while it is true that non-site-specific costs areused to calculate a contractor's annual allocation costs, thequestion of whether the government is required to producedocumentation of those costs as part of its initial disclosuresis at least somewhat debatable, especially in light of the factthat courts have routinely held that the government satisfies itsevidentiary burden regarding costs through the use of costsummaries and declarations from EPA staff, attorneys,accountants, and supervisors. See Chapman, 146 F.3d at 1171;Chromalloy, 158 F.3d at 352; Hardage, 982 F.2d at 1442-43. Inthis case, Findett did not join in the January 15, 1998, letterfrom GM's counsel to the government, and did not make clear itsobjections with respect to allocation costs until Jensen'sdeposition (which, as mentioned above, did not take place untilmid-November 1998). In its supplemental responses to thegovernment's first set of interrogatories (dated September 16,1998), Findett merely contended that "a significant amount" ofthe government's costs had not been properly documented, withoutelaborating as to which costs it was referring. The Court willdeny Findett's motion for sanctions.

Accordingly,

IT IS HEREBY ORDERED that plaintiff the United States ofAmerica's motion for partial summary judgment on liability [# 80]is granted.

IT IS FURTHER ORDERED that plaintiff's motion for partialsummary judgment on response costs [# 108] is granted, and thatdefendant Findett Corporation's cross-motion for summary judgment[# 123] is denied.

IT IS FURTHER ORDERED that defendant Findett Corporation'smotion for sanctions [# 127] is denied.

A separate judgment in accordance with this memorandum andorder is entered this same date.

The parties shall bear their own costs of this action.

1. The purpose of the National Oil and Hazardous SubstancesPollution Contingency Plan (often referred to as "the nationalcontingency plan" or "the NCP") is "to provide the organizationalstructure and procedures for preparing for and responding todischarges of oil and releases of hazardous substances,pollutants, and contaminants." 40 C.F.R. § 300.1.

2. In a case in which a party other than the federalgovernment, a State, or an Indian tribe seeks to recover itsresponse costs, the relevant statutory subsection provides thatthe plaintiff must prove that those costs were (a) necessary and(b) consistent with the NCP. See 42 U.S.C. § 9607(a)(4)(B)(making a covered person liable for "any other necessary costsof response" incurred by any person other than the federalgovernment, a State, or an Indian tribe which are "consistentwith the national contingency plan"); Washington State Dep't ofTrans. v. Washington Natural Gas Co., 59 F.3d 793, 799-800 (9thCir. 1995). In contrast, where the party seeking its responsecosts is one of the three enumerated parties (i.e., the UnitedStates Government, a State, or an Indian tribe), it may recoverall of those costs, regardless of necessity, that are "notinconsistent with the national contingency plan."42 U.S.C. § 9607(a)(4)(B). Because the instant case is one brought by one ofthe three parties listed in § 9607(a)(4)(B), its costs arepresumed to be consistent with the NCP. See Minnesota v. KalmanW. Abrams Metals, Inc., 155 F.3d 1019, 1025 (8th Cir. 1998)(stating that the government "may recover all costs except thosethat [defendants] prove were inconsistent with the NCP").

3. The Dent court agreed on this point. See 156 F.3d at532 ("The purpose of § 113(g)(2) is, in fact, to require that thecourt's judgment in the first action have a preclusive effect asto liability on all successive actions.").

4. As mentioned above, such construction is required totrigger the running of the six year limitations period under thestatute. See 42 U.S.C. § 9613(g)(2).

5. The Court notes that the government attached to its replybrief an excerpt from one of the three depositions.

6. Findett filed its "Memorandum in Opposition to UnitedStates' Motion for Partial Summary Judgment on Liability" onDecember 4, 1998. In footnote one on page three of thatmemorandum, Findett states that it "will supplement th[e]Memorandum to include the precise page number as soon as Findettreceives the deposition transcripts." To date Findett has notfiled any additional deposition portions or listing of pagenumbers with the Court related to this issue.

7. Older versions of this regulation are not substantivelydifferent. See 40 C.F.R. § 300.160(a)(1) (1990) (using samelanguage); 40 C.F.R. § 300.69(a) (1985) ("In general, documentationshould be sufficient to provide the circumstances of thecondition, the identity of responsible parties, accurateaccounting of Federal costs incurred, and impacts and potentialimpacts to the public health, welfare and environment.").

8. Attachment C also refutes Findett's claims regarding othercontracts reviewed by Jensen. For example, the attachmentindicates that for contract number 68-W9-0006, a $188,809.53contract performed by Planning Research Corporation, thegovernment provided site-specific invoices indicating costs bycost-type, invoice approval forms, Treasury schedules evidencingproof of payment, work assignments with descriptions of work tobe performed, and monthly progress reports. Similar documentationwas provided for a $67,713.17 contract performed by JacobsEngineering (contract number 68-01-7351), a $40,279.31 contractperformed by Alliance/GCA (contract number 48-01-6769), a$48,745.62 contract performed by Ecology & Environment (contractnumber 68-01-7347), and a $238,823.92 contract (number68-01-6692) also performed by CH2M Hill.

9. Region VII consists of the states of Missouri, Iowa,Kansas, and Nebraska. See 40 C.F.R. § 300.105, Fig. 2.

10. These costs total $335,435.03. In its response toFindett's motion, the government states that based on a recentreview of the contractor annual allocation costs, it hasconcluded that there should be no such costs for one of thecontracts, and is therefore willing to stipulate that this$335,435.03 figure should be reduced by $8,525.00. The judgmentin this case will be reduced by this amount for a total judgmentof $3,285,384.

MEMORANDUM AND ORDER

In this civil action, brought under § 107(a) of theComprehensive Environmental Response, Compensation, and LiabilityAct ("CERCLA"), 42 U.S.C. § 9607(a), as amended by the SuperfundAmendments and Reauthorization Act of 1986, plaintiff the UnitedStates of America seeks to recover response costs that itclaims to have incurred, and will incur, in connection with ahazardous waste site located in St. Charles, Missouri. Currentlybefore the Court are the following motions: (1) the government'smotion for partial summary judgment on liability againstdefendant Findett Corporation, (2) the government's motion forpartial summary judgment on response costs against Findett, (3)Findett's cross-motion for partial summary judgment on responsecosts, and (4) Findett's motion for sanctions. All the motionsare fully briefed. For the reasons set forth below, the Courtwill grant the government's motions and deny Findett's motions.

I. Factual Background

The hazardous waste site in question is known as theFindett/Hayford Bridge Site. The Site consists of three parcelsof land: property currently owned by defendant FindettCorporation, property formerly owned by Findett and now owned bythe Cadmus Corporation (also a defendant here), and propertyimmediately south of the land occupied by Cadmus.

Findett was incorporated in 1962 under the name Findett ServiceCompany, and changed its name to Findett Corporation in 1974.From 1962 through at least 1974, Findett was engaged in thebusiness of recycling and recovering manufacturing fluids, suchas heat transfer fluids, hydraulic fluids, and solvents. Some ofthose fluids contained polychlorinated biphenyls ("PCBs"), whichare now known to be hazardous. Findett disposed of some of thewaste generated by its operation, including waste containingPCBs, in an open pit or "quench pond" located on its property.Soil analysis shows that the Findett Site is contaminated withPCBs and volatile organic compounds ("VOCs").

EPA's involvement with the Site began in the early 1980's.After EPA's initial investigations indicated the existence ofcontamination at the Site, the agency conducted furtherinvestigations, including an investigation to identify partiespotentially responsible for the contamination, and a remedialinvestigation to more fully define the nature and extent of thecontamination. EPA also conducted a feasibility study in which itevaluated alternatives to remediate the contamination.

On May 14, 1990, the government and Findett entered into aconsent decree in United States v. Findett Corp., No.90-0417-C-61, an action also brought in this district. Under theterms of that decree, Findett agreed to perform certain remedialactions, including installing several ground water extractionwells, treating ground water using "air stripping," dischargingtreated ground water, and removing contaminated soil. The consentdecree, by its terms, did not operate as a determination ofliability with respect to Findett, and did not prohibit thegovernment from bringing an action based on Findett's liabilityfor remedial action for matters not addressed in the decree.Since the entry of the consent decree, EPA has reviewed andoverseen the work performed by Findett under the decree,including reviewing design documents, inspecting field work, andmonitoring ground water.

Findett states that it ceased its recycling operations in 1976,and that in 1994, it underwent a "major" transformation followingthe purchase of a 100% ownership interest by Manuel Joaquim. Atthe time he made that acquisition, Joaquim already owned 3,400 ofthe company's shares, which he had purchased in 1990.

The government initiated this lawsuit on July 25, 1997. In itscomplaint, the government named a total of eight defendants,including Findett. The other seven defendants are: ACFIndustries, Inc., General Motors Corporation, the Goodyear Tireand Rubber Company, Mallinckrodt Chemical, Inc., MonsantoCompany, Cadmus, and Milton Tegethoff. As mentioned above, thegovernment is seeking to recover all of the response costs thatit claims to have incurred, and that it will incur, in connectionwith the Site. Given that the government's involvement with theSite has been quite lengthy, some of those costsdate as far back as 1980. The government asserts that throughJune 30, 1998, the costs, including interest, total $3,293,909.

II. Discussion

In determining whether summary judgment should issue pursuantto Rule 56(c) of the Federal Rules of Civil Procedure, the Courtmust view the facts, and the inferences from those facts, in thelight most favorable to the non-moving party. The moving partybears the burden of both establishing the absence of a genuineissue of material fact and showing that it is entitled tojudgment as a matter of law. Celotex Corp. v. Catrett,477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); MatsushitaElec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Once the movingparty has met this burden, however, the non-moving party may notrest on the allegations in its pleadings, but by affidavit orother evidence must set forth specific facts showing that agenuine issue of material fact exists. Fed.R.Civ.P. 56(e). If thenon-moving party bears the burden of proof at trial, summaryjudgment is warranted if the non-movant is unable to make ashowing sufficient to establish the existence of an elementessential to its case. Lujan v. National Wildlife Fed'n,497 U.S. 871, 884, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).

A. The Government's Motion for Partial Summary Judgment as to Liability

The Comprehensive Environmental Response, Compensation, andLiability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., was enactedin 1980 "in response to the serious environmental and healthrisks posed by industrial pollution." United States v.Bestfoods, 524 U.S. 51, 118 S.Ct. 1876, 1881, 141 L.Ed.2d 43(1998). CERCLA gives the Environmental Protection Agency ("EPA")"broad authority to direct clean-up operations prior to a finaljudicial determination of the rights and liabilities of theparties affected." United States v. Dico, Inc., 136 F.3d 572,574 (8th Cir. 1998) (internal quotation marks omitted). Thestatute authorizes the EPA to bring an action in a federaldistrict court to recover from responsible parties the removaland remediation costs that the government has incurred inconnection with responding to the release or threatened releaseof hazardous substances from disposal or treatment facilities orsites. Id. (citing 42 U.S.C. § 9607(a)).

In an action brought by the government against a private party,the key statutory section is 42 U.S.C. § 9607, which sets forth"the scope of the liabilities that may be imposed on privateparties and the defenses that they may assert." Key Tronic Corp.v. United States, 511 U.S. 809, 814, 114 S.Ct. 1960, 128 L.Ed.2d797 (1994); 42 U.S.C. § 9607. The statute identifies four classesof "responsible persons" liable for response costs:

(1) the owner and operator of a vessel or a facility,

(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,

(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and

(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance.

42 U.S.C. § 9607(a)(1)-(4). The statute further provides that"notwithstanding any other provision or rule of law," a"responsible person" shall be liable in an actionbrought by the government for "all costs of removal or remedialaction . . . not inconsistent with the national contingency plan["NCP"],"1 including interest thereon. 42 U.S.C. § 9607(a).Thus, to establish liability under § 9607(a), the government mustshow (1) that Findett is a "responsible person" within themeaning of the statute, (2) that the Findett Site is a"facility," (3) that there has been a release or threatenedrelease of a hazardous substance or substances from the Site, and(4) that the government has incurred response costs as a result.See United States v. Aceto Agric. Chems. Corp., 872 F.2d 1373,1378-79 (8th Cir. 1989).2

CERCLA is a strict liability statute, Control Data Corp. v.S.C.S.C. Corp., 53 F.3d 930, 936 (8th Cir. 1995), with only alimited number of statutorily-defined defenses available. In anaction brought under § 9607, an otherwise liable party may avoidliability only if it can establish by a preponderance that therelease or threatened release of the hazardous substance orsubstances and the resulting damages were caused "solely" by oneor more of the following: an act of God, an act of war, or,subject to certain limitations, an act or omission of a thirdparty. Section 9607(b); see B.F. Goodrich Co. v. Murtha,958 F.2d 1192, 1198 (2d Cir. 1992). ("Potential affirmative defensesare limited to those listed in § 9607(b)").

Findett concedes in its brief in opposition to the government'ssummary judgment motion that the government has established "allthe elements necessary to present a prima facie case ofliability under CERCLA against Findett." Findett contends,however, that genuine issues of material fact remain as to thefollowing three issues: (1) whether the government's claim isbarred by the statute of limitations, (2) whether a third partyother than Findett is liable under § 9607(b), and (3) whether thegovernment has already recovered costs in excess of those that ithas incurred consistent with the NCP. The record indicates thatthe parties have more fully developed the third issue in theirbriefs on the government's motion for partial summary judgment oncosts, and the Court will therefore address the issue in thatsection of this opinion.

Findett's first argument is that this action is barred by thesix year statute of limitations found in 42 U.S.C. § 9613(g)(2).That subsection provides that in the case of a remedial treatmentaction, an "initial action" for the recovery of the costsreferred to in § 9607 must be brought "within 6 years afterinitiation of physical on-site construction of the remedialaction." 42 U.S.C. § 9613(g)(2). The statute further providesthat in any such initial action, "the court shall enter adeclaratory judgment on liability for response costs ordamages that will be binding on any subsequent action or actionsto recover further response costs or damages." Id. Finally, thestatute provides that a "subsequent" action or actions under §9607 "may be maintained at any time during the response action,"or "must be commenced no later than 3 years after the date ofcompletion of all response action." Id.

The parties agree that if the instant action is a "subsequent"action within the meaning of the statute, it is not time-barred,as response action at the Site is ongoing. Findett, however,contends that this action is, in fact, an "initial" action. Thegovernment disagrees, arguing that the case that ended in theentry of the May 14, 1990, consent decree was the initial action,and that this action is therefore a subsequent action. Findettresponds by pointing out that no declaratory judgment as toliability was entered in the earlier case. Findett argues thatunder the terms of § 9613(g)(2), an action cannot be an "initial"action if no such judgment is entered.

Two courts of appeals — although not the Eighth Circuit, whichhas never addressed the issue — have described § 9613(g)(2)'slanguage as rendering the entry of a declaratory judgment"mandatory." See Kelley v. E.I. DuPont de Nemours and Co.,17 F.3d 836, 844 (6th Cir. 1994); Dent v. Beazer Materials andServs., Inc., 156 F.3d 523, 531 (4th Cir. 1998) (quotingKelley, 17 F.3d at 844). However, neither was considering thequestion presented here. In Kelley, for example, the defendantsargued to the Sixth Circuit that the district court erred ingranting declaratory relief to cover future clean-up costs infavor of the State of Michigan, contending that such costs werespeculative. See 17 F.3d at 844. Similarly, in Dent, theFourth Circuit was faced with the issue of whether the districtcourt erred in entering a declaratory judgment as to futureresponse costs on the basis of evidence adduced prior tocompletion of administrative proceedings. See 156 F.3d at 531.

The only court of appeals to squarely confront the argumentraised by Findett here is the Seventh Circuit, which rejected it.United States v. Navistar Int'l Trans. Corp., 152 F.3d 702,708-10 (7th Cir. 1998). That court found that the purpose of §9613(g)(2) was simply to avoid the need to relitigate liabilityquestions,3 and concluded that there was "nothing to indicatethat a declaratory judgment is the only permissible means toresolve an `action for recovery of the costs referred to insection 9607.'" Id. at 709-10 (quoting § 9613(g)(2)). Assupport for its position, the court pointed to legislativehistory plainly indicating that the sole purpose of the section'sdeclaratory judgment language is "`to conserve judicial time andresources,'" id. at 709 (quoting H.R.Rep. No. 99-253, pt. 3, at21 (1985), reprinted in 1986 U.S.C.C.A.N. 3038, 3034).

While the Court recognizes that "shall" generally means "must,"cf. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 432 n. 9,115 S.Ct. 2227, 132 L.Ed.2d 375 (1995) (observing that "legalwriters sometimes use, or misuse, `shall' to mean `should,'`will,' or even `may'"), it believes that the Seventh Circuit hasthe better argument with respect to § 9613(g)(2). First of all,the Court is cognizant of the general principle that statutes oflimitations are to be construed in favor of the government. See,e.g., United States v. Telluride Co., 146 F.3d 1241, 1248 (10thCir. 1998). More importantly, however, the Court believes thatreading § 9613(g)(2) as mandating the entry of a declaratoryjudgment would run counter to CERCLA's fundamental purposes,i.e., encouraging quick responses to hazardous waste sites andplacing the costs therefor on those responsible for the hazardousconditions. See Control Data Corp., 53 F.3d at 936. Findett'ssuggested reading of the statutewould have the perverse effect of promoting litigation bydiscouraging the government and potentially "responsible parties"from entering into consent decrees. Because the government wouldinsist, under Findett's reading of § 9613(g)(2), on obtaining adeclaratory judgment of liability, a potentially "responsibleparty" otherwise amenable to entering into such a decree mightwell devote resources to litigation that would be better spent onclean-up. The Court finds that the government's suit is asubsequent action within the meaning of § 9613(g)(2), and,therefore, is not time-barred.

Even if the Court's interpretation of § 9613(g)(2) wereincorrect and the six year statute of limitation were to apply,the Court agrees with the government that this action would stillbe timely. Under a tolling agreement executed by Findett onOctober 7, 1996, the statute of limitations was tolled during theperiod October 21, 1996, through October 21, 1997. The governmentcontends that the unrebutted evidence shows that no "physicalon-site construction of the remedial action" took place prior toOctober 22, 1990.4 Findett disagrees, contending that "anumber of activities, consistent with the permanent remedies,were at the site prior to October 22, 1990." To support itsclaims, Findett refers the Court to the depositions of threeindividuals. However, Findett has not provided the Court withthose depositions5 or cited the particular pages on which therelevant statements appear.6 Findett has thus failed to "setforth specific facts showing that there is a genuine issue [onthe statute of limitations question] for trial." Rule 56(e),Fed.R.Civ.P. Moreover, the three activities (namely, conductingtopographic surveys, "laying out" a concrete pad "that was to beconstructed," and collecting deepwater ground samples) thatFindett alleges took place prior to October 22, 1990, could notpossibly constitute "physical on-site construction." SeeCalifornia v. Hyampom Lumber Co., 903 F. Supp. 1389 (E.D.Cal.1995) (setting forth a four part test for determining when agiven event constitutes physical, on-site construction, andholding that the installation of water and electrical hardwaremet that test); United States v. Akzo Nobel Coatings, Inc.,990 F. Supp. 897, 905-06 (explaining that Hyampom Lumber's testestablishes a floor, not a ceiling, and holding that thetriggering event must represent "an integral step in theimplementation of the permanent remedy"); cf. Navistar, 152F.3d at 705, 713 (placement of the first "lift" of clay to buildpermanent clay cap on landfill triggered statute).

Findett also seeks to invoke each of the three affirmativedefenses listed in § 9607(b). First, Findett argues that when itsstock was purchased by Manuel Joaquim in 1994, its responsibilityfor its past releases of hazardous substances ceased to exist.Second, Findett argues that its neighbor Cadmus was "a source ofthe hazardous substances" found on Cadmus' property. Third,Findett contends that "there are facts to show that flooding mayhave contributed to the contamination of the Findett Site bytransferring the hazardous materials from Cadmus." (Emphasis inFindett's brief.)

Findett points to no authority for the proposition that acorporation's potential CERCLA liability ceases when itsstock is sold to an individual who, at the time of purchase, isaware of contamination on property owned by the corporation. Thecases cited by Findett are inapposite. They deal with the issueof when CERCLA liability can be imposed on a corporate successor,which is not the issue here. See Black's Law Dictionary 1431(6th ed. 1990) (defining "successor" with reference tocorporations to mean "another corporation which, throughamalgamation, consolidation, or other legal succession, becomesinvested with rights and assumes burdens of first corporation").For example, two of the cases relied on by Findett, B.F.Goodrich Co. v. Murtha, 840 F. Supp. 180, 191 (D.Conn. 1993); andUnited States v. Petersen Sand & Gravel, Inc., 806 F. Supp. 1346,1350 (N.D.Ill. 1992), involved the issue of whether acorporation succeeds to the statutory liabilities of apredecessor sole proprietor. In the only Eighth Circuit case thatdefendant cites, United States v. Mexico Feed & Seed Co.,980 F.2d 478 (8th Cir. 1992), the court was faced with the questionof whether a corporation that purchased the assets of a waste oilhauling company was liable under CERCLA for clean-up of theacquired company's leaking oil tanks. The court of appeals heldin the negative, reasoning that the corporation was a larger,preexisting competitor of the hauling company, and that itpurchased the company's assets without knowledge of the tanks andprior to the company's being identified as a potentiallyresponsible party under CERCLA. Id. at 489. Here, Findett wasnot acquired by an existing corporation; rather, its stock waspurchased by an individual who knew of its environmentalliabilities.

Findett's arguments that Cadmus caused some of thecontamination at the Site and that flooding "most likely impactedthe distribution of surface contaminants" at the Site fall oftheir own force. As explained above, to avoid liability under §9607, Findett must prove by a preponderance that the release wascaused "solely" by an act of God, an act of war, or the act oromission of a third party. 42 U.S.C. § 9607(b). Findett does notcontend that its actions played no part in the release ofhazardous substances at the Site.

In sum, the Court finds that this action is not barred by thestatute of limitations, and that Findett has failed to raise agenuine issue of material fact with regard to the threeaffirmative defenses available under 42 U.S.C. § 9607(b). Thegovernment is entitled to summary judgment on liability.

B. The Government's Motion for Partial Summary Judgment on Costs

Following the filing of its motion for partial summary judgmenton liability, the government filed another motion for partialsummary judgment, this one on response costs. In that lattermotion, the government seeks reimbursement from Findett of$3,293,909 in response costs that it claims to have incurred inconnection with the Site. The three million dollar figureconsists of (1) the payroll and travel costs of EPA personnel,(2) EPA indirect costs (i.e., costs which, while not attributableto a specific Superfund site, are necessary to operate theSuperfund program, and which are allocated to a site based on thenumber of EPA employee hours charged to that site), (3) costs ofnumerous contracts entered into by EPA with contractors for,inter alia, analyzing environmental samples collected at theSite, quality assurance and quality control of analytical datafor the Site, remedial investigation and planning activities, andcollection and monitoring of ground water, (4) costs ofagreements entered into between EPA and the Missouri Departmentof Human Resources under which the state agency renderedmanagement and technical assistance with remedial investigationsand performed various oversight work, (5) prejudgment interestthat began accruing on September 27, 1996, the date of EPA'sdemand letter to potentially responsible parties seeking past andfuture costs, and (6) Department of Justice employeepayroll and travel costs and indirect costs.

As mentioned above, CERCLA provides that the federalgovernment, a state, or an Indian tribe can recover "all costs ofremoval or remedial action . . . not inconsistent with thenational contingency plan." 42 U.S.C. § 9607(a)(4)(A). In anaction brought by any one of those three parties, the burden ofproof as to inconsistency is on the defendant. United States v.Northeastern Pharm. & Chem. Co., 810 F.2d 726, 747 (8th Cir.1986) ("NEPACCO"), cert. denied, 484 U.S. 848, 108 S.Ct. 146,98 L.Ed.2d 102 (1987); Minnesota v. Kalman W. Abrams Metals,Inc., 155 F.3d 1019, 1025 (8th Cir. 1998); United States v.Chapman, 146 F.3d 1166, 1171 (9th Cir. 1998). A defendant "mustdemonstrate that the government's response action giving rise tothe particular cost is inconsistent with the NCP." United Statesv. Hardage, 982 F.2d 1436, 1442 (10th Cir. 1992) (citingNEPACCO, 810 F.2d at 748), cert. denied, 510 U.S. 913, 114S.Ct. 300, 126 L.Ed.2d 248 (1993); United States v. R.W. Meyer,Inc., 889 F.2d 1497, 1508 (6th Cir. 1989), cert. denied,494 U.S. 1057, 110 S.Ct. 1527, 108 L.Ed.2d 767 (1990).

Findett argues that the government is not entitled to the bulkof its claimed response costs because it has not provided Findettwith documents required by an EPA directive and by the NCP. TheCourt considers those arguments in turn.

Findett and its expert contend that in order to properlydocument its costs, the government must follow the guidelines setforth in a document known as Resource Management Directives 2550Dor "Financial Management of the Superfund Program" ("EPADirective 2550D") which was issued on July 25, 1988. According tochapter one of EPA Directive 2550D, the document's purpose is toexplain the financial management and accounting policies "withwhich all EPA offices must comply" to meet Superfund's accountingrequirements.

The problem with Findett's argument invoking EPA Directive2550D is that "CERCLA clearly states that `notwithstanding anyother provision or rule of law,' a private party will reimbursethe United States for all costs incurred." United States v.Chromalloy American Corp., 158 F.3d 345 (5th Cir. 1998); see42 U.S.C. § 9607(a). The Supreme Court has observed that inconstruing statutes, the use of a "notwithstanding" clause"clearly signals the drafter's intention that the provisions ofthe `notwithstanding' section override conflicting provisions ofany other section." Cisneros v. Alpine Ridge Group,508 U.S. 10, 18, 113 S.Ct. 1898, 123 L.Ed.2d 572 (1993).

In Chromalloy, the Fifth Circuit considered — and rejected —a contention quite similar to that raised by Findett here. Inthat case, Sequa Corporation, one of the defendants, challengedthe district court's failure to find that oversight costsincurred by the EPA were incurred in violation of the Economy Actof 1932. Sequa argued that the EPA failed to follow the EconomyAct's provisions in entering into an agreement with the Bureau ofReclamation ("BOR") under which BOR agreed to assist the EPA inoverseeing Sequa's clean-up efforts, and pointed out that theEPA-BOR agreement specifically identified the Economy Act as thestatutory authority for the transfer of funds and for theprojected oversight activities. See 158 F.3d at 350. The FifthCircuit disagreed, holding that the EPA's failure to follow theEconomy Act did not preclude imposing oversight costs on Sequa.In doing so, the court found § 9607(a)'s "notwithstanding"language "explicit," and stated that it "must be given effect."Id. at 351; see also Town of Munster v. Sherwin-Williams Co.,27 F.3d 1268, 1271 (7th Cir. 1994) (describing § 9607(a)'slanguage as "clear and unambiguous"). Several district courtshave reached the same conclusion. See, e.g., United States v.Wade, 577 F. Supp. 1326, 1336 (E.D.Pa. 1983) (explaining that §9607(a)'s "clear language" refuted defendants' attempt to linkliability under § 9607 to restrictions placed on Superfundexpenditures in § 9604); United States v. Reilly Tar & Chem.Corp., 546 F. Supp. 1100, 1117-18 (D.Minn. 1982) (citing §9607(a)'s "notwithstanding" language in rejecting defendant'scontention that the existence of a cooperative agreement betweenthe state and federal government — which § 9604(c)(3) requiresbefore the President can take any remedial actions — is aprerequisite to liability under § 9607); see also United Statesv. Hardage, 733 F. Supp. 1424, 1435 (W.D.Okla. 1989) (findingthat defendant provided no authority for its contention "that afact dispute exists as to whether certain costs were incurred incompliance with federal procurement laws and regulations"),aff'd in relevant part, 982 F.2d 1436 (10th Cir. 1992), cert.denied, 510 U.S. 913, 114 S.Ct. 300, 126 L.Ed.2d 248 (1993). TheCourt finds that § 9607(a)'s unambiguous language leads to theconclusion that even assuming the government failed to complywith EPA Directive 2550D, that failure does not bar its recoveryin this action.

Findett's other argument is that the government has notcomplied with the documentation requirements of the NCP itself.However, as Findett's own expert conceded at his deposition, theNCP simply does not contain any specific standards concerning thedocumentation of costs. Rather, it provides as follows:

During all phases of response, the lead agency shall complete and maintain documentation to support all actions taken under the NCP and to form the basis for cost recovery. In general, documentation shall be sufficient to provide the source and circumstances of the release, the identity of responsible parties, the response action taken, accurate accounting of federal state or private party costs incurred for response actions, and impacts and potential impacts to the public health and welfare and the environment.

40 C.F.R. § 300.160(a)(1) (1998) (emphasis added).7 Theregulation does not define "accurate accounting" and does notelaborate on what is meant by "sufficient" documentation.

In this case, the government has adduced a significant amountof evidentiary support for its motion for partial summaryjudgment on response costs. For example, it has provided itemizedcost summary reports of its payroll costs. Those reports includethe names of employees who did Site-related work, the year andthe pay period in which they did that work, the hours that theyworked, and the corresponding payroll amounts. The government hasalso provided cost summaries of Site-related travel costs. Thesummaries list the employee who traveled, the travel vouchernumber, the cost of the travel, and the Treasury scheduleconfirming payment of that cost. With respect to the EPAcontractors who worked on the Site, the government has providedcontract summaries listing the contractor, contract number, andtotal contract costs. The summaries set forth the voucher andTreasury schedule numbers supporting those costs and confirmingpayment thereof. The government has further provided affidavitsof all of the remedial project managers ("RPMs") who worked onthe Findett Site between May 1983 to the present. In thoseaffidavits, the RPMs reference specific contracts andcontractors, and attest that they, inter alia, oversaw the workdone by those contractors on the Site, reviewed monthly workassignment status reports submitted by the contractors, andmonitored the progress of the contractors on the Site throughtelephone conversations, face-to-face meetings, and on-siteinspections.

The type of documentation submitted by the government in thiscase hasbeen found acceptable by several courts of appeals. In UnitedStates v. Chapman, 146 F.3d 1166 (9th Cir. 1998), for example,the Ninth Circuit found that the EPA adequately documented thecosts incurred in its response action with "detailed costsummaries" and "declarations from EPA staff, attorneys,accountants, and supervisors" attesting to the work theyperformed and the time that they spent on the site. Id. at1171. Likewise, in Chromalloy, the Fifth Circuit upheld thedistrict court's grant of summary judgment in favor of thegovernment, concluding that the EPA's "detailed cost summaries"provided an "adequate" basis to find the government's oversightcosts reasonable and necessary. 158 F.3d at 352. Finally, inHardage, the Tenth Circuit agreed that documentation consistingof affidavits of EPA and Department of Justice employees chargedwith accumulating the response cost data, coupled with supporting"summaries of cost data," were sufficient to establish a primafacie case that the government was entitled to the responsecosts it had incurred. 982 F.2d at 1442-43. The Court finds thegovernment has adequately documented its response costs in thiscase as well.

Although Findett attacks the government's costs as inadequatelydocumented, the Court disagrees. As just explained, the type ofdetailed cost summaries submitted by the government here haveroutinely been found adequate to support its cost claims in othercases. Furthermore, even if Findett were correct in itscontention that more than that documentation is required, theCourt believes the government has provided more. As its chiefexample of a cost sought by the government which, it alleges, isinsufficiently supported, Findett points to CH2M Hill contractnumber 68-01-7251, under which EPA claims to have incurred$869,779.04 in response costs. Findett contends in its brief thatits accounting expert, Dale Jensen, "analyzed the documentationthat was produced to Findett and the other defendants by the EPAand found that there were no invoices, progress reports, treasuryschedules, or work assignments that related to the work done atthe Findett Site." Leaving aside the fact that Jensenacknowledged at his deposition that he never personally reviewedthe government's document production, the Court notes thatFindett's contention is squarely refuted by Attachment C toJensen's expert report, which indicates that the government infact provided for contract number 68-01-7251 the following:site-specific invoices indicating costs by cost type, invoiceapproval forms signed by the Site's RPM or other responsiblesite-specific EPA employee, proof of payment invoices (i.e.,Treasury schedules), and monthly progress reports.8

Findett's challenge to the government's annual or historicalallocation cost reports also fails. Findett claims that thegovernment provided only a "conclusory and self servingcertification" and a "statement by an EPA official" in support ofits allocation cost reports. The record is to the contrary.Through the annual allocation process, a contractor who works onmultiple sites under a single contract with the EPA allocates toa given site the costs of non-site-specific activities that arenevertheless necessary to support its site-specific responseactions (e.g., the rent on a regional office from which acontractor oversees work at several sites). Allocation to aparticular site is made on the basis of theratio of that site's direct site costs to the total cost of allsite and non-site activities. By totaling the site-specific costswith the allocated non-site specific costs, the governmentendeavors to develop the real total cost of the site workperformed by the contractor. The government offered a thoroughand detailed explanation of the allocation process, and the Courtconcludes that inclusion of the allocated costs is proper. CERCLA"contemplates that those responsible for hazardous waste at eachsite must bear the full cost of cleanup actions and that thosecosts necessarily include both direct costs and a proportionateshare of indirect costs attributable to each site." R.W. Meyer,Inc., 889 F.2d at 1504. For all of the above reasons, the Courtfinds that Findett has failed to raise a dispute of material factas to whether the government is entitled to the $3,293,909 thatit incurred in response actions at the Findett Site.

C. Findett's Cross-Motion for Summary Judgment on Response Costs

After the government filed its motion for partial summaryjudgment on response costs, Findett filed a cross-motion forsummary judgment with respect to the same issue. In that motion,Findett argues, as it did in its response to the government'smotion, that because the government failed to comply with EPADirective 2550D, it is not entitled to recover its response costsas a matter of law. Findett further asserts that even assumingthe government could establish its costs, summary judgment inFindett's favor is nevertheless warranted because the companylacks the ability to pay any judgment in excess of $601,550. Inthe preceding section, the Court considered fully and rejectedFindett's argument with respect to the EPA directive.Accordingly, in this section, it will address only Findett'sability to pay argument.

In support of its contention that the Court should grantsummary judgment in its favor based on inability to pay, Findettcites a September 30, 1997, memorandum entitled "General Policyon Superfund Ability to Pay Determinations" from the director ofEPA's Office of Site Remediation Enforcement. By its terms, thatdocument provides "a general policy framework" for settlements inwhich a party's financial ability to pay is a "significantconsideration." The policy's purpose is "to provide guidance" toEPA enforcement personnel, affected parties, and the public onthe information that EPA will look at and the steps that it willfollow in evaluating a potential settlement based on ability topay.

Findett's contention is flawed in several respects. First, thepolicy statement that Findett relies on is just that — a policystatement. As such, it does not have the force of law. Even if ithad such force, by its terms it relates to settlements, not fullylitigated disputes such as this one. As with any defendant in anylawsuit, Findett's ability to pay a judgment is irrelevant to adetermination that it is liable for any particular sum. SeeUnited States v. Charles George Trucking, Inc., 34 F.3d 1081,1087 (1st Cir. 1994). The Court will deny Findett's motion forpartial summary judgment.

III. Findett's Motion for Sanctions

Findett has also moved for sanctions against the government forits alleged failure to comply with Rule 26(a), Fed.R.Civ. P., andthe Case Management Order. The grounds of Findett's motion are asfollows: On January 15, 1998, after the government made itsinitial Rule 26(a) disclosures, counsel for defendant GeneralMotors Corporation ("GM") wrote to counsel for the government andstated, "Upon the generator defendants' review of the documents,several types of documents we expected to find in a complete sitefile appear to be missing." GM's counsel then listed tencategories of documents that she was seeking. The ninth categorylisted was "annual allocation reports and supporting Sitespecific invoices and treasury schedules." The government'scounsel, Daniel Jacobs,responded to the letter from GM's counsel on January 28, 1998.With respect to that ninth category, Jacobs stated,

The site-specific invoices and treasury schedules are not presently within the custody and control of EPA. The following annual allocation reports are presently within EPA's custody and control and will be produced: (1) Copies of three contracts with final annual allocation rates; (2) Documentation for provisional annual allocation rates for contracts 68-01-6769; 68-W9-0006 and 68-W9-0007.

Jacobs later clarified that "not presently within the custody andcontrol of EPA" meant that EPA "conducted a good faith search forthe requested documents in its Region VII offices and did notlocate them," and that the searchers had no expectation that thedocuments would be found in any other EPA office.9

On November 16, 1998, the government took the deposition ofDale Jensen, who, as mentioned above, is Findett's expertaccountant. At that deposition, Jensen challenged thegovernment's annual allocation costs on the ground that they werenot properly documented. On January 28, 1999, after the close ofdiscovery in this case, Jacobs wrote Findett's counsel, andadvised that the EPA had just advised him (Jacobs) that it hadlocated "work performed" and "invoice" documentation relating toannual allocation costs in Washington, D.C., and ResearchTriangle Park, North Carolina. Jacobs advised that it wouldproduce the documents (possibly subject to a protective order toprotect confidential business information) at "the earliestpracticable time."

In its motion for sanctions, Findett argues that theaforementioned sequence of events leads to the conclusion thatthe government either "intentionally" misled Findett and theother defendants or failed to timely conduct a good faith searchfor the requested documents. Findett contends that the Courtshould sanction the government for its belated production byexcluding any evidence in support of its claim for allocationcosts10 and awarding Findett the costs and attorney's feesthat it incurred in raising this matter.

Rule 26(a) of the Federal Rules of Civil Procedure requires aparty to provide to other parties, inter alia, "a copy of, or adescription by category and location of, all documents, datacompilations, and tangible things in the possession, custody, orcontrol of the party that are relevant to disputed facts allegedwith particularity in the pleadings." Rule 26(a), Fed.R.Civ.P.The rule further provides that a party shall make its initialdisclosures "based on the information then reasonably availableto it." Id. If, without "substantial justification," a partyfails to disclose information required by Rule 26(a), it shallnot be permitted to use that information at trial, unless itsfailure is harmless. Rule 37(c)(1), Fed.R.Civ.P.; see Finley v.Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir. 1996) ("Thesanction of exclusion is . . . automatic and mandatory unless theparty to be sanctioned can show that its violation of Rule 26(a)was either justified or harmless.").

The Court will deny Findett's motion for several reasons.First, it does not comply with Local Rule 3.04(A), whichprovides, "The Court will not consider any motion relating todiscovery and disclosure unless it contains a statement thatmovant's counsel has conferred in person or by telephone with theopposing counsel in good faith or has made reasonable efforts todo so. . . ." E.D.Mo. L.R. 3.04(A) (emphasis added). The Courtcould deny themotion on that basis alone. Second, there is no indication thatthe government acted in bad faith in making its disclosures, thatis, that it failed to turn over relevant documents then"reasonably available" to it. In its Rule 26(a) disclosures, thegovernment produced to defendants sixteen boxes containing 48,725pages of documents. Included in those documents was the EPA'sentire documentary record for the Site and a compilation of allcost documents relating to the Site. Third and finally, the Courtbelieves that while it is true that non-site-specific costs areused to calculate a contractor's annual allocation costs, thequestion of whether the government is required to producedocumentation of those costs as part of its initial disclosuresis at least somewhat debatable, especially in light of the factthat courts have routinely held that the government satisfies itsevidentiary burden regarding costs through the use of costsummaries and declarations from EPA staff, attorneys,accountants, and supervisors. See Chapman, 146 F.3d at 1171;Chromalloy, 158 F.3d at 352; Hardage, 982 F.2d at 1442-43. Inthis case, Findett did not join in the January 15, 1998, letterfrom GM's counsel to the government, and did not make clear itsobjections with respect to allocation costs until Jensen'sdeposition (which, as mentioned above, did not take place untilmid-November 1998). In its supplemental responses to thegovernment's first set of interrogatories (dated September 16,1998), Findett merely contended that "a significant amount" ofthe government's costs had not been properly documented, withoutelaborating as to which costs it was referring. The Court willdeny Findett's motion for sanctions.

Accordingly,

IT IS HEREBY ORDERED that plaintiff the United States ofAmerica's motion for partial summary judgment on liability [# 80]is granted.

IT IS FURTHER ORDERED that plaintiff's motion for partialsummary judgment on response costs [# 108] is granted, and thatdefendant Findett Corporation's cross-motion for summary judgment[# 123] is denied.

IT IS FURTHER ORDERED that defendant Findett Corporation'smotion for sanctions [# 127] is denied.

A separate judgment in accordance with this memorandum andorder is entered this same date.

The parties shall bear their own costs of this action.

1. The purpose of the National Oil and Hazardous SubstancesPollution Contingency Plan (often referred to as "the nationalcontingency plan" or "the NCP") is "to provide the organizationalstructure and procedures for preparing for and responding todischarges of oil and releases of hazardous substances,pollutants, and contaminants." 40 C.F.R. § 300.1.

2. In a case in which a party other than the federalgovernment, a State, or an Indian tribe seeks to recover itsresponse costs, the relevant statutory subsection provides thatthe plaintiff must prove that those costs were (a) necessary and(b) consistent with the NCP. See 42 U.S.C. § 9607(a)(4)(B)(making a covered person liable for "any other necessary costsof response" incurred by any person other than the federalgovernment, a State, or an Indian tribe which are "consistentwith the national contingency plan"); Washington State Dep't ofTrans. v. Washington Natural Gas Co., 59 F.3d 793, 799-800 (9thCir. 1995). In contrast, where the party seeking its responsecosts is one of the three enumerated parties (i.e., the UnitedStates Government, a State, or an Indian tribe), it may recoverall of those costs, regardless of necessity, that are "notinconsistent with the national contingency plan."42 U.S.C. § 9607(a)(4)(B). Because the instant case is one brought by one ofthe three parties listed in § 9607(a)(4)(B), its costs arepresumed to be consistent with the NCP. See Minnesota v. KalmanW. Abrams Metals, Inc., 155 F.3d 1019, 1025 (8th Cir. 1998)(stating that the government "may recover all costs except thosethat [defendants] prove were inconsistent with the NCP").

3. The Dent court agreed on this point. See 156 F.3d at532 ("The purpose of § 113(g)(2) is, in fact, to require that thecourt's judgment in the first action have a preclusive effect asto liability on all successive actions.").

4. As mentioned above, such construction is required totrigger the running of the six year limitations period under thestatute. See 42 U.S.C. § 9613(g)(2).

5. The Court notes that the government attached to its replybrief an excerpt from one of the three depositions.

6. Findett filed its "Memorandum in Opposition to UnitedStates' Motion for Partial Summary Judgment on Liability" onDecember 4, 1998. In footnote one on page three of thatmemorandum, Findett states that it "will supplement th[e]Memorandum to include the precise page number as soon as Findettreceives the deposition transcripts." To date Findett has notfiled any additional deposition portions or listing of pagenumbers with the Court related to this issue.

7. Older versions of this regulation are not substantivelydifferent. See 40 C.F.R. § 300.160(a)(1) (1990) (using samelanguage); 40 C.F.R. § 300.69(a) (1985) ("In general, documentationshould be sufficient to provide the circumstances of thecondition, the identity of responsible parties, accurateaccounting of Federal costs incurred, and impacts and potentialimpacts to the public health, welfare and environment.").

8. Attachment C also refutes Findett's claims regarding othercontracts reviewed by Jensen. For example, the attachmentindicates that for contract number 68-W9-0006, a $188,809.53contract performed by Planning Research Corporation, thegovernment provided site-specific invoices indicating costs bycost-type, invoice approval forms, Treasury schedules evidencingproof of payment, work assignments with descriptions of work tobe performed, and monthly progress reports. Similar documentationwas provided for a $67,713.17 contract performed by JacobsEngineering (contract number 68-01-7351), a $40,279.31 contractperformed by Alliance/GCA (contract number 48-01-6769), a$48,745.62 contract performed by Ecology & Environment (contractnumber 68-01-7347), and a $238,823.92 contract (number68-01-6692) also performed by CH2M Hill.

9. Region VII consists of the states of Missouri, Iowa,Kansas, and Nebraska. See 40 C.F.R. § 300.105, Fig. 2.

10. These costs total $335,435.03. In its response toFindett's motion, the government states that based on a recentreview of the contractor annual allocation costs, it hasconcluded that there should be no such costs for one of thecontracts, and is therefore willing to stipulate that this$335,435.03 figure should be reduced by $8,525.00. The judgmentin this case will be reduced by this amount for a total judgmentof $3,285,384.

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