2004 | Cited 0 times | E.D. Arkansas | March 1, 2004


This Court conducted a hearing on Plaintiff's right toreimbursement of response costs incurred or to be incurred at theGurley Pit Site and South 8th Street Superfund Sites locatedin northeast Arkansas. The Court finds the United States isentitled to response cost at the Gurley Pit Site in the amount of$13,986,191.94,1 plus interest from July 24, 2002 untilthe date of judgment, plus post judgment interest at the rate of1.23% until paid. The Court also finds the United States isentitled to response costs at the South 8th Street Site inthe amount of $6,979,055.182 plus interest from July 24,2002 until the date of judgment, plus post judgment interest at the rate of 1.23% until paid, plus a declaratoryjudgment for all future response costs at the South 8thStreet Site. The State of Arkansas is entitled to a declaratoryjudgment for all future response costs incurred by the State atthe South 8th Street Site.


This case has a long and tumultuous history, a brief review ofwhich is required for a thorough understanding of theseproceedings. In November, 1987, the United States brought anaction under Section 107(a) of the Comprehensive EnvironmentalResponse, Compensation, and Liability Act of 1980 ("CERCLA"),42 U.S.C. § 9607, against Defendant, William M. Gurley, and othersto recover all of its response costs in cleaning up the GurleyPit Site located in northeast Arkansas. That action was assignedto the Honorable George Howard, Jr. Section 107(a) of CERCLAauthorizes the United States or a state to recover from liableparties "all costs of removal or remedial action incurred by theUnited States . . . not inconsistent with the nationalcontingency plan ("NCP")." 42 U.S.C. § 9607(a). On July 14, 1990,Judge Howard issued a Memorandum and Opinion granting the Motionfor Summary Judgment filed by the United States as to liabilityagainst Mr. Gurley at the Gurley Pit Site (also referred tooccasionally in the record as the "Edmondson Pit Site"). UnitedStates v. Gurley Ref. Co., et al., No. 3:86CV291, slip op. (E.D.Ark. June 14, 1990). Two years later, Judge Howard issued anOrder holding Mr. Gurley and related entitles liable for$1,786,502.00 representing the costs incurred by the UnitedStates through February 28, 1990, as well as a declaratoryjudgment for future response costs at the Gurley Pit Site.United States v. Gurley Ref. Co., 788 F. Supp. 1473 (E.D. Ark.1992). In 1994, the Eighth Circuit affirmed the judgment as to Mr. Gurley.United States v. Gurley, 43 F.3d 1188 (8th Cir. 1994),cert. denied, 116 S.Ct. 73 (1995).

In July, 1995, Mr. Gurley filed for bankruptcy in the MiddleDistrict of Florida. On April 24, 1996, the United States filed aProof of Claim in the bankruptcy court against Mr. Gurley for theresponse costs at the Gurley Pit Site and at another site, theSouth 8th Street Superfund Site ("South 8th Street Site").After a trial in September, 1997, the bankruptcy court denied Mr.Gurley's discharge, held that Mr. Gurley had concealedsubstantial assets in an effort to avoid the CERCLA judgmentagainst him, and entered a judgment against Mrs. Gurleydetermining that the concealed assets were property of thebankruptcy estate.3 United States v. William M. Gurley,No. 95-0293, Bankr. M.D. Fla. (J. and Mem. Op., Aug. 15, 1997);United States v. William M. Gurley, No. 95-0293, Bankr. M.D.Fla. (Am. J., Sept.16, 1997). That judgment was affirmed by theEleventh Circuit Court of Appeals. Betty Jean Gurley v. GeorgeE. Mills, Jr., Trustee, No. 98-01169-CIV-ORL-18 slip op. (11thCir. Sept. 20, 2000) (per curium).

On March 23, 1998, the United States filed an Amended Proof ofClaim in the bankruptcy action. Mr. Gurley then filed a Motion toWithdraw the Reference which was granted by the United StatesDistrict Court for the Middle District of Florida. On February25, 2000, the Florida District Court transferred the claims ofthe United States to this Court. The State of Arkansas intervenedfiling a claim for Declaratory Judgment alleging that Mr. Gurleyis liable for any response costs incurred by the ArkansasDepartment of Environmental Quality ("ADEQ").

II. CURRENT LITIGATION: The United States filed Motions for Summary Judgment in thisaction as to the Gurley Pit Site based on the DeclaratoryJudgment in the former Gurley action before Judge Howard. TheUnited States also filed a Motion for Summary Judgment as to theSouth 8th Street Site for all response costs incurred and to beincurred in the future. This Court conducted a hearing on themotions and issued an Order dated September 27, 2001, grantingthe Motions for Summary Judgment in all respects, except as tothe factual issue of whether the response costs were inconsistentwith the NCP.4 This Court then conducted a court trial onthe amount of the response costs in the action. At the conclusionof the trial, the Court directed the parties to file post-trialbriefs. The only issues before the Court at this time are 1) theadmissibility of payroll cost exhibits; 2) whether the responsecost incurred in this action are inconsistent with the NCP; and3) joint and several liability at the South 8th Street Site.


During the trial on costs, the Court admitted the summaryexhibits5 offered by the government but excludedadmission of payroll costs in the summary where the payrollinformation did not reveal the underlying salary and wage rate.The United States filed a Brief in Support of Motion forAdmission (Doc. No. 93) of the payroll costs during the last daysof the hearing. Mr. Gurley filed his response (Doc. No. 95) andthe United States replied (Doc. No. 96). From the pleadings, the Court finds the payroll costs listed inthe summaries are admissible. The payroll reports generated fromthe Environmental Protection Agency ("EPA") Integrated FinancialManagement System ("IFMS") show the amounts paid and the hoursworked per pay period for each EPA regional and headquartersemployee who worked on the Gurley Pit Site and South 8thStreet Sites.6 The computer printouts detailing payrollcosts incurred are admissible pursuant to FRE 1006 since there issufficient supporting underlying data and the governmentestablished that the printouts accurately reflected the datastored in the IFMS computerized central accounting system. EPARegion 6 accountant Dennis McBride, EPA headquarters accountantCharles Young, and the Plaintiff's expert certified publicaccountant, Wiley Wright, all testified at length as to theintegrity, accuracy, and reliability of the EPA computer systemsand printouts. In addition, Mr. Wright testified that he testedwhether the payroll computer printouts contained in Government'sExhibits 2 and 3 accurately reflected the data stored in the IFMScomputer system by comparing the information contained in thoseprintouts to the payroll data stored in the IFMS system. For eachof the instances checked, the payroll information was identicalto that separately generated and printed from the data stored inthe IFMS system. For these reasons, the Court finds thoseportions of Plaintiff's Exhibit 2 and 3 dealing with payrollcosts admissible.


At the conclusion of the hearing, the Court directed theparties to file briefs addressing each item of cost and detailingthe evidence, or lack thereof, with respect to each item.However, in Mr. Gurley's Post-trial Brief (Doc. No. 105) andProposed Findings and Conclusions (Doc. No. 106), he devotes well over half of his brief to a re-argument ofthe defenses of statute of limitations and lack of subject matterjurisdiction. Mr. Gurley concedes, on the second page of hisfifty page brief, that he "recognizes full well that this courthas previously rejected his defenses of limitations and failureto properly commence a civil action." (Def.'s Post-trial Br. at2.) This Court has found these arguments to be without merit onmore than one occasion7 and will not address them again.

With respect to the Gurley Pit Site, the government seeks thefollowing response costs: 1) EPA Region 6 and Headquarter payroll expenses; 2) EPA Region 6 and Headquarter travel expenses; 3) EPA indirect costs,8 4) expenditures for contracts; 5) expenditures under EPA's interagency agreement with the Army Corps of Engineers; 6) funds provided by EPA to the State of Arkansas; 7) funds provided to the Agency for Toxic Substances and Disease Registry ("ATSDR");9 8) prejudgement interest; and 9) Department of Justice (DOJ) enforcement costs.Specifically, the Cost Summary10 reveals:GURLEY SITE 06-39

EPA Principal from 3-1-90 $9,392,225.67 to 6-30-01 (no ATSDR) INTEREST (from 9-10-90 4,945,957.85 to 7-24-02 (no ATSDR) DOJ 737,268.86 PAYMENTS (1,089,260.44) TOTAL Gurley Pit Site $13,986,191.9411 (after withdrawal of ATSDR costs) SOUTH 8TH STREET 06-H8 EPA Principal from inception $5,596,093.34 to 6-30-01 (no ATSDR) INTEREST from 4-24-96 1,822,693.33 to 7-24-02 (no ATSDR) DOJ 868,062.81 PAYMENTS (1,306,000.00) TOTAL South 8TH Street Site $6,980,849.48COMBINED TOTAL FOR GURLEY PIT SITEAND SOUTH 8TH STREET SITE $20,967,041.42(unreimbursed and past costs)


With respect to his objections to the government's claim, theonly costs Mr. Gurley challenged in his post-trial brief are:

(1) enforcement costs related to both the Gurley Pit Site and South 8th Street Site incurred after the bankruptcy petition date, July 26, 1995. (2) prejudgment interest with regard to both Sites accruing or incurred after the date that Mr. Gurley filed for bankruptcy, July 26, 1995. (3) costs rejected by Philip Marino, Mr. Gurley's accountant. (4) payroll costs questioned by the Court. (5) contract costs sought by the government at the South 8th Street Site.Based on Mr. Marino's opinion as to the total billings verified,Mr. Gurley concludes that he "can only be liable for$5,591,824.60 for the Gurley Pit Site and $3,514,077.88 for theSouth 8th Street Site. (Plf.'s Post-trial Br., Exhibit 2 at 577-78). Mr. Gurleyalso argues that the damage is divisible and that the amounts heshould pay must be reduced by twenty-five percent.


Section 107(a) of CERCLA authorizes the United States or astate to recover from liable parties "all costs of removal orremedial action incurred by the United States Government or aState . . . not inconsistent with the national contingency plan."42 U.S.C. § 9607(a). "Because the instant case is one brought byone of the three parties12 listed in § 9607(a)(4)(B), itscosts are presumed to be consistent with the NCP." United Statesv. Findett Corp., 75 F. Supp.2d 982 (E.D. Mo. 1999), aff'd,220 F.3d 842 (8th Cir. 2000) (citing Minnesota v. Kalman W.Abrams Metals, Inc., 155 F.3d 1019, 1025 (8th Cir. 1998)."In an action brought by any one of those three parties, theburden of proof as to inconsistency is on the defendant. Adefendant `must demonstrate that the government's response actiongiving rise to the particular cost is inconsistent with theNCP.'" United States v. Findett Corp., 75 F. Supp.2d at 990(citing United States v. Northeastern Pharm. & Chem. Co.,810 F.2d 726, 747 (8th Cir. 1986), cert. denied, 484 U.S. 848(1987)). CERCLA "contemplates that those responsible forhazardous waste at each site must bear the full cost of cleanupactions and that those costs necessarily include both directcosts and a proportionate share of indirect costs attributable toeach site." Findett, 75 F. Supp.2d at 993.

As previously noted, if the government's response actions arein harmony with the NCP, the costs incurred pursuant to thoseactions are recoverable from liable parties. Findett,220 F.3d 842, 849-50 (8th Cir. 2000); United States v. Hardage,982 F.2d 1436, 1441 (10th Cir. 1992), cert. denied, 510 U.S. 918(5th Cir. 1993). Response costs that are not inconsistentwith the NCP are conclusively presumed to be reasonable and therefore recoverableunder CERCLA. See United States v. Dico, 266 F.3d 864, 879(8th Cir. 2001); United States v. Findett Corp., 220 F.3dat 849; United States v. Hardage, 982 F.2d at 1441-1443; UnitedStates v. Northeastern Pharm. and Chem. Co., Inc., 810 F.2d at747-48 (8th Cir. 1986); United States v. Vertac Chem.Corp., 33 F. Supp.2d 769, 777 (E.D. Ark. 1998); United Statesv. Gurley, 788 F. Supp. at 1481. The focus of the NCP is onprocedures for the selection of response action rather than on"costs", per se: The NCP regulates choice of response action, not costs. Costs, by themselves, cannot be inconsistent with the NCP. Only response actions — i.e., removal or remedial actions — can be inconsistent with the NCP, which can be demonstrated by a showing that the government's choice of response action was arbitrary and capricious. As long as the government's choice of response action is not inconsistent with the NCP, its costs are presumed to be reasonable and therefore recoverable.Hardage, 982 F.2d at 1443 (emphasis in the original).

The defendant's expert in Findett argued the EPA submittedinsufficient documentation to substantiate its response costs.The district court, however, concluded that the government hadprovided sufficient evidentiary support for its motion forpartial summary judgment on response costs. As in this case: [The government] provided itemized cost summary reports of its payroll costs. Those reports include the names of employees who did Site-related work, the year and the pay period in which they did that work, the hours that they worked, and the corresponding payroll amounts. . . . The summaries list the employee who traveled, the travel voucher number, the cost of the travel, and the Treasury schedule confirming payment of that cost. With respect to the EPA contractors who worked on the Site, the government has provided contract summaries listing the contractor, contract number, and total contract costs. The summaries set forth the voucher and Treasury schedule numbers supporting those costs and confirming payment thereof.Findett, 75 F. Supp.2d at 991. On appeal, the Eighth Circuitaffirmed holding that EPA had submitted sufficient evidence to support its claim for recoveryof response costs. United States v. Findett, 220 F.3d at849-50. The Appeals Court reasoned that the alleged missingdocumentation noted in the defendant's expert report was in factprovided by the EPA to the defendant and the detail sought (forexample, progress reports from contractors, audit reports ofcontacts) was only peripherally related to whether the responsecosts were actually incurred. Findett, at 849.

During the course of the trial of the issue of costs, theUnited States presented testimony from ten witnesses:

(1) Dennis McBride, an EPA accountant who certified theaccuracy and the adequacy of the documentation of the EPA costs;

(2) Cheryl Young, a Corps of Engineers accountant who certifiedthe accuracy and adequacy of the Corps of Engineers costs;

(3) Charles Young, an EPA accountant and expert who testifiedas to the accuracy and reliability of the EPA's IFMS and EPA'smethod of calculating indirect costs and annual allocation costs;

(4) Thomas Achinger, an ATSDR accountant who testifiedregarding the ATSDR costs incurred;

(5) Wiley Wright, an expert Certified Public Accountant ("CPA")who testified regarding the accuracy and adequacy of thedocumentation of the government's costs;

(6) Todd Hill, a Corps of Engineer project manager whotestified regarding the work performed by the Corps of Engineersat the Gurley Pit Site;

(7) Vincent Malott, an EPA project manager who testifiedregarding work performed at the South 8th Street Site;

(8) Robert Griswold, a former EPA project manager who testifiedas to the work performed by the EPA at the Gurley Pit Site;

(9) William Kime, an expert CPA who testified by videodeposition as to the accuracy and the adequacy of thedocumentation of the Department of Justice ("DOJ") costs; and

(10) David Weeks, a former EPA project manager who testified bydeposition as to work performed at the South 8th Street Site.

The United States supported its costs by a variety of documentsincluding time sheets, travel vouchers, contract invoices,interagency agreement bills and cooperative agreement paymentrequests. Contract payments were further documented with ProjectOfficer Invoice Approvals and proof of payment, which includedthe amount and date paid.

The United States notes that although Mr. Gurley did not seekdiscovery as to the costs incurred by the United States, theUnited States copied its certified cost packages for the GurleyPit Site and South 8th Street Sites (approximately 26,000pages) and forwarded them to counsel for Mr. Gurley well beforethe hearings. Mr. Gurley presented testimony from one witness,Phillip Marino, an accountant who testified that he acceptedcertain of Plaintiff's costs but rejected others.

The Court notes initially that Mr. Gurley did not call a singlewitness to testify that the response actions selected orimplemented at the Gurley Pit or South 8th Street Sites werearbitrary, capricious, or not otherwise in accordance with law.In contrast, witnesses for the United States testified that theresponse actions selected and implemented at the Gurley Pit Sitesand the South 8th Street Sites were cost effective or costsubstantially less than other remedies that could have been chosen or performed at the Sites. The Court specificallyfinds that Mr. Gurley failed to meet his burden to show theresponse actions at the Gurley Pit Site or the South 8thStreet Site were inconsistent with the NCP. This failure of proofis critical. In spite of this finding, the Court will examineeach of the five objections raised by Mr. Gurley:

1. Costs incurred after bankruptcy petition date: Mr. Gurleyargues that if the Court were exercising its bankruptcyjurisdiction and were to determine the government had anallowable claim, the amount of that claim would be calculated asof Gurley's date of filing his bankruptcy petition — July 26,1995 (citing 11 U.S.C. § 502(b)).13 Thus, Mr. Gurleyargues that the Government's claim, calculated as of the petitiondate, cannot include "unmatured interest, legal fees andcollection costs" accruing or incurred after the petition date(Def.'s Post Tr. Br. at 29).

The Court does not interpret Section 502(b) to mean that legalfees, unmatured interest and collection costs are not recoverableafter the filing of the bankruptcy petition. The Court interpretsthe statue to prohibit the recovery of costs for new work at asite, such as dirt removal, drilling, the erection of barriers,etc., without the filing of a new claim. Unmatured interest,legal fees and collection costs related to work already performedare recoverable.

2. Prejudgment Interest after the filing of the bankruptcypetition:

The United States argues Mr. Gurley has not challenged theaccuracy or the adequacy of the documentation of the$6,768,921.00 in prejudgment interest incurred by the UnitedStates. Mr. McBride testified that from September 10, 1990,through July 25, 2002, prejudgment interest of $4,945,957.85accrued on costs incurred at the Gurley Pit Site. He furthertestified that from April 24, 1996, the date that the United States filed its proofof claim related to the South 8th Street Site, to July 24,2002, prejudgment interest of $1,822,963.33 accrued on costsincurred at the South 8th Street Site, for a total of$6,768,921.00 at both sites.

Section 107(a) of CERCLA provides that the government isentitled to interest which shall "accrue from the later of (i)the date payment of a specified amount is demanded in writing, or(ii) the date of the expenditure concerned." See General Elec.Co., v. Litton Bus. Sys., Inc., 715 F. Supp. 949, 959 (W.D. Mo.1989), aff'd, 920 F.2d 1415 (1990) (court awarded prejudgmentinterest as response costs); United States v. Township ofBrighton, 153 F.3d 307, 321 (6th Cir. 1998) (prejudgmentinterest recoverable); United States v. R.W. Meyer, Inc.,889 F.2d 1497, 1505, cert. denied, 494 U.S. 1057 (1990) (affirmeddistrict court award to government of prejudgement interest).Based upon these findings and the case law, the Court finds theUnited States is entitled to prejudgment interest in the amountsrequested.

3. Costs rejected by Philip Marino:

Mr. Marino, Mr. Gurley's accountant, disputes certain costs dueto lack of authorization; costs that are inadequate or containunrelated backup documents; costs where the amounts on the backupdocumentation did not agree with the invoice or summary listing;costs where no wage rates for the payroll hours were provided;costs which were illegible; costs which were duplicative; costswhere the site was not identified; and invoices whether there wasno connection to the EPA's summary of the billings. However, Mr.Marino did not testify that these deficiencies made him questionwhether the expenses were actually incurred or that the responseaction taken was arbitrary, capricious, and not consistent withthe NCP.

As previously noted, the Eighth Circuit in United States v.Findett, 220 F.3d 842 (8th Cir. 2000) affirmed the holding of the district court that EPA hadsubmitted sufficient evidence to support its claim for recoveryof response costs. The Court reasoned that the alleged missingdocumentation noted in the defendant's expert report was in factprovided by the EPA to the defendant and the detail sought (forexample, progress reports from contractors, audit reports ofcontacts) was only peripherally related to whether the responsecosts were actually incurred. See Findett, 220 F.3d at 849.This Court finds, from the testimony of the witnesses for theUnited States and the 26,000 pages of underlying documentation,the summaries of the costs, and the lack of challenge by Mr.Gurley, that the United States made a prima facie case and Mr.Gurley has failed to show the costs are inconsistent with theNCP.

4. Payroll Costs questioned by the Court:

Mr. McBride testified that from March 1, 1990, through July 31,2001, the EPA incurred regional payroll costs of $189,736.00 andheadquarters payroll costs of $5,514.00, for a total of$195,251.00 in connection with the Gurley Pit Site. Mr. McBrideindicated that from inception through June 30, 2001, the EPAincurred regional payroll costs of $388,067.00, and theheadquarters payroll costs of $9,442.00 for a total off$397,509.00 for the South 8th Street Site. Thus, the EPAincurred a combined total of $592,761.00 in un-reimbursedregional and headquarters payroll costs at the Gurley Pit andSouth 8th Street Sites.

As previously noted in the discussion of the admissibility ofthese costs, the Court noted that all of the accountants whotestified, including Mr. Gurley's, verified that the EPA payrollcharges were accurate and reasonable. Significantly, Mr. Marino,Mr. Gurley's accountant, did not propose the rejection of any ofthe EPA's payroll charges for lack of wage rate. Oncross-examination, he stated: Q. Yet when you looked at it, the regional payroll costs, you did not reject any of them for that code D, did you?

A. No.

Q. Why was that?

A. Because there was a document that had the total number of dollars for — say Mr. Jones worked eight hours on Gurley Pit, and there would be an extension of how much he was paid, and that work paper or printout, the totals on those matched the summary listings. And so even though I wasn't able to verify whether those dollar amounts were accurate, I tested some of them to see if they seemed outrageous, as far as rate. But I didn't have any way of really verifying what that person's monthly or annual or hourly rate was. Q. And it was for that same reason that you did some testing and the dollars passed the reasonableness test in your own mind, isn't that right? A. Yes.(Tr. Hrg. on Costs, Vol. 3, at 517-18, July 4, 2002). The Courtfinds the payroll summaries are sufficiently supported by theunderlying documentation and were sufficiently randomly tested bywitnesses for both parties. Based on these witnesses' testimony,the payroll summaries accurately reflect the costs incurred inpayroll expenses and are not inconsistent with the NCP.

5. Contract costs at South 8th Street for the two monthperiod before CERCLA became effective:

Mr. Gurley argues that the government seeks contract costs fromOctober 1, 1980 through November 30, 1990 on the South 8thStreet Site despite the fact that CERCLA did not become law untilDecember, 1980. There is one document concerning RemedialContract, CH2M Hill 68-01-6692, which shows a date of servicefrom 10/1/80 to 9/30/85 in the amount of $52,931.71. This timeperiod includes two months of work before CERCLA was enacted. Theperiod time of this contract covered 59 months. Since two of themonths were before the enactment of CERCLA, the Court will deduct $1,794.30 ($52,931.71 divided by 59 equals$897.15 times 2 months equals $1794.30) from the total cost of$52,931.71 for a revised total of $51,137.41.


Mr. Gurley argues that because the United States was aPotentially Responsible Party ("PRP") in this matter, thegovernment should be limited to a claim for contribution underSection 113 of CERCLA, 42 U.S.C. § 9613(f) rather than a jointand several liability claim under Section 107,42 U.S.C. § 9607(a)(3). The United States responds that the authority toimpose joint and several liability on liable parties is anintegral element of the special role that CERCLA carves out forthe United States and the EPA in protecting the public from therelease of hazardous substance.

Under Section 107(a)(4)(A) of CERCLA, Congress authorized theUnited States, or a state or an indian tribe to recover, fromresponsible parties, "all costs of removal or remedial actionincurred . . . not inconsistent with the national contingencyplan. 42 U.S.C. § 9607(a)(4)(A). In contrast, Section107(a)(4)(B) of CERCLA, Congress only authorized any other partyto recover other necessary costs of response incurred consistentwith the national contingency plan. 42 U.S.C. § 9607(a)(4)(B).The United States cites legislative history of CERCLA and arguesthat it shows that Congress intended that the United States isentitled to seek joint and several liability regardless ofwhether it might also be a PRP. The United States relies on aCongressional comment made during the enactment of Section113(f), the contribution provision of CERCLA, where Congressspecifically considered and rejected defendant's argument: This section does not affect the right of the United States to maintain a cause of action for cost recovery under Section 107, or injunctive relief under Section 106, whether or not the United States was an owner or operator of a facility or a generator of waste at the site.H.R. Rep. No. 99-253, pt. 1 at 79-80 (1985) reprinted in1986 U.S.C.C.A.N. 2835, 2861-62. Numerous cases hold that the UnitedStates is entitled to have private parties held jointly andseverally liable under Section 107 of CERCLA, even in certainfederal agencies are themselves PRPs. See State of CaliforniaDep't of Toxic Substances Control v. Alco Pacific, Inc.,217 F. Supp.2d 1028, 1036 (C.D. Cal. 2002); State of New York v.Moulds Holding Corp., 196 F. Supp.2d 210, 214-15 (N.D.N.Y.2002); United States v. Chrysler Corp., 157 F. Supp.2d 849,858-59 (N.D. Ohio 2001); United States v. Manzo, 182 F. Supp.2d 385(D.N.J. 2001); United States v. Friedland, 152 F. Supp.2d 1235,1246-49 (Colo. 2001); United States v. Hunter,70 F. Supp.2d 1100, 1104-07 (C.D. Cal. 1999); United States v.Wallace, 961 F. Supp. 969 (N.D. Tex. 1996); United States v.Kramer, 757 F. Supp. 397, 413-417 (D.N.J. 1991); United Statesv. Western Processing Co., 734 F. Supp. 930 (W.D. Wash. 1990).

The cases cited by Mr. Gurley14 involve privateparties, and not the United States, a state or an indian tribe.Mr. Gurley's most recent submission refers to a holding thatprivate party plaintiffs who had entered into a Consent Decreewith the United States and the State of Arkansas in the cases ofUnited States v. Aircraft Service Int'l, Inc., No. J-C-98-362(E.D. Ark.) and Arkansas Dep't of Pollution Control and Ecologyv. Aircraft Service Int'l, Inc., No. J-C-98-363 (E.D. Ark.) were precluded from bringing joint and several claimsunder Section 107 of CERCLA against non-settling PRPs. Thesecases are clearly distinguishable from the cases brought by theUnited States. Given the plain language of the statute, thelegislative history of CERCLA and well-established precedent, Mr.Gurley must be held jointly and severally liable to the UnitedStates under CERCLA at the South 8th Street Site.

Finally, Mr. Gurley argues that he is not jointly and severallyliable because the Gurley operation dumped its waste primarily inthe oily sludge pit at the Site. The United States responds thatMr. Gurley has not met his burden to show either distinct harmsor a reasonable basis for apportioning a single harm to publichealth and the environment at the South 8th Street Site. Seee.g. United States v. Hercules, 247 F.3d 706, 716-18 (8thCir. 2001); Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930,939 n. 4 (8th Cir. 1995). The evidence at trial revealed thatalthough the oily sludge pit located within Area 2 at the Sitecontained the highest concentration of hazardous substances,lower concentrations of similar hazardous substances were locatedthroughout Areas 1, 2, and 3 of the Site. Both Columbus Burroughsand Lee Fielder testified at the trial on liability that therewas substantial flooding at the Site during the 1960s whichcaused commingling of contaminants (Liability Tr. at 39). Dr.Eugene Meyer testified that due to the commingling of waste fromthe Gurley operation and other sources it was impossible todetermine whose hazardous substances were released at whichlocations at the Site. Mr. Gurley offered no evidence at trialthat hazardous substances found beyond the oily sludge pit butwithin other areas of the Site were distinct from similarhazardous substances dumped by the Gurley operation. Nor did hepresent any evidence that the hazardous substances dumped by hisoperation did not migrate throughout the Site. Thus, the Courtfinds that Mr. Gurley did not meet his burden to show a preponderance of concrete and specific evidence of adivisibility of harm at the South 8th Street Site.


It is, therefore, ORDERED (1) the payroll documents referencedin Government Exhibits 2 and 3, are admitted into evidence inthis case; (2) the United States is entitled to response cost atthe Gurley Pit Site in the amount of $13,986,191.94, plusinterest from July 24, 2002 until the date of judgment, plus postjudgment interest at the rate of 1.23% until paid; (3) the UnitedStates is entitled to response costs at the South 8th StreetSite in the amount of $6,979,055.1815 plus interest fromJuly 24, 2002 until the date of judgment, plus post judgmentinterest at the rate of 1.23 % until paid, plus a declaratoryjudgment for all future response costs and interest at the South8th Street Site; and (4) the State of Arkansas is entitled toa declaratory judgment for all future response costs incurred bythe State at the South 8th Street Site. Judgment shall beentered in accordance with this Memorandum Opinion.

1. This figure includes principal on costs incurred from March1, 1990 through June 30, 2001, and interest on those costs fromSeptember 10, 1990 through July 24, 2002 at the Gurley Pit Site.It also includes a reduction of $10,659.00 in ATSDR costs, plusinterest, because the United States withdrew this claim. Theamount also includes a reduction of $1,089,260.44 resulting fromseveral payments by other parties made toward the costs incurredat the Site. The figure does not include $1,377,492.00 whichremains outstanding from the judgment awarded by the HonorableGeorge Howard, Jr. in 1992, related to costs incurred prior toFebruary 28, 1990.

2. This figure includes principal on costs incurred throughJune 30, 2001, and interest on those costs from April 24, 1996,through July 24, 2002. It also includes a reduction of$125,162.00 in ATSDR costs, plus interest, because the UnitedStates withdrew this claim. The figure also includes a$1,306,000.00 reduction for amounts paid by other parties relatedto the South 8th Street Site. The figure also includes adeduction, $1,704.30, for proportionate costs incurred prior tothe enactment of CERCLA.

3. The United States notes that the bankruptcy estate nowholds more than $23 million for the benefit of creditors. TheUnited States claims it is Mr. Gurley's primary creditor.

4. The Court also reserved the issue of whether Mr. Gurley wasan owner or operator of the South 8th Street Site, but after ahearing conducted on December 3 and 7, 2001, decided the issueagainst Mr. Gurley, finding him to be an owner or operator. (SeeTr. Evid. Hrg., Vol. 2, Dec. 7, 2001).

5. On July 26, 2002, the Court clarified that all of thesummaries admitted at the April, 2002, hearing remained admitted(i.e. Exhibits 1, 2, 3, 4, 6, 7, 8, 10, 12, 14, 19, 20, 22, 23,25, 26, 27, 28, 29).

6. The Court notes that the wage rate for each employee couldbe calculated by dividing the hours worked by the amount paid toeach employee.

7. These arguments regarding the statute of limitations andlack of subject matter jurisdiction were initially raised in theAugust 28, 2001 hearing on the Motion for Summary Judgment filedby the United States. The Court denied Mr. Gurley's argumentsregarding these defenses in that hearing. On December 31, 2001,Mr. Gurley filed a Motion for Reconsideration (Doc. No. 72) ofthis Court's August 28, 2001 ruling stating that "Gurley's locallawyer did not do a good job. . . ." (Def.'s Mem. in Supp of Mot.to Recons. at 1.) The Court denied the Motion forReconsideration. (Doc. No. 97). On April 23, 2002, two daysbefore the first day of the trial on the amount of the responsecosts, Mr. Gurley filed a Motion to Dismiss arguing the samedefenses (Doc. No. 84) but conceded during the hearing that theseissues had been decided against him previously. (Tr. Hrg on Cost,Vol. 1 at 13, Apr. 25, 2002.) This Court denied that motion. TheCourt then conducted a five day hearing over a period of severalmonths and directed post-trial briefs. In Mr. Gurley's post-trialbrief, he again raised these defenses.

8. Indirect costs are "costs which, while not attributable toa specific Superfund site, are necessary to operate the Superfundprogram, and which are allocated to a site based on the number ofEPA employee hours charged to that site." United States v.Findett Corp., 75 F. Supp.2d 982 (E.D. Mo. 1999), aff'd,220 F.3d 842 (8th Cir. 2000). They consist of joint or commonprogram-wide expenditures, such as rent, accounting or personneloffices, or management (at both national and regional levels),that cannot be specifically identified with a particular productor Superfund site and, therefore, are allocated among all sitesat which the EPA has incurred response costs. See (Tr. Hrg. onCosts, Vol. 2, at 231-32, 263-64, April 26, 2002.)

9. The United States notes that it has withdrawn its requestfor reimbursement of the costs and associated interest incurredby the ATSDR in this case.

10. These figures are established by Government's TrialExhibit 1, the Government's Post Trial Brief and Trial Exhibit10.

11. The total does not include $1,377,492.00 which representsthe $1,786,503.00 judgment from Judge Howard's case in 1992 forcosts through 2-28-1990 and interest of $1,516,498.00 through4-25-2002, less payments of $1,925,509.00.

12. The federal government, a state, or an indian tribe.

13. "[T]he Court, after notice and a hearing, shall determinethe amount of such claim in lawful currency of the United Statesas of the date of the filing of the petition and shall allow suchclaim in such amount. . . ."

14. United Technologies v. Browning-Ferris Industries,33 F.3d 96 (1st Cir. 1994); Bedford Affiliates v. Sills,156 F.3d 416 (2nd Cir. 1998); New Castle County v. HalliburtonNUS, 111 F.3d 1116 (3rd Cir. 1997); Pneumo Abex v. HighPoint Thomasville & Denton, 142 F.3d 769 (4th Cir. 1998);OHM Remediation Services v. Evans Cooperage Co., 116 F.3d 1574(5th Cir. 1997); Centerior Service Co. v. Acme Scrap Iron &Metal, 153 F.3d 344 (6th Cir. 1998); Akzo Coatings, Inc. v.Aigner Corp., 30 F.3d 761 (7th Cir. 1994); Pinal CreekGroup v. Newmont Mining Corp., 118 F.3d 1298 (9th Cir.1997); United States v. Colorado & Eastern R. Co., 50 F.3d 1530(10th Cir. 1995); and Redwing Carriers, Inc. v. SaralandApartments, 94 F.3d 1489 (11th Cir. 1996).

15. The costs at the South 8th Street Site were$6,980,849.48 minus $1,794.30 (proportionate cost of workperformed prior to the enactment of CERCLA).

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