United States v. Dico, Inc.
ELR Citation: ELR 20171 No(s). 00-2430 (8th Cir. Sep 19, 2001)
The court affirms a district court decision holding a company liable for U.S. response costs incurred while cleaning up groundwater contamination at the Des Moines trichloroethylene (TCE) site and awarding the United States over $4 million in cleanup costs. The court first holds that the district court properly allowed the testimony of the government's expert hydrologist. The company failed to show any deficiencies in the reliability of the expert's testimony. The court also holds that the district court did not err in excluding several opinions of the company's expert that were neither contained in the expert's report nor disclosed to the United States prior to trial. Even if presented at trial, the opinions would not have altered the litigation's outcome. Further, the court holds that the district court did not err in admitting deposition testimony offered by the government after both sides had rested their cases because the court afforded the company an adequate opportunity to respond.
The court next holds that there is ample evidence in the record to support the district court's conclusion that the company released TCE and that it reached the soil, and that the company's releases of TCE migrated into the groundwater and caused the contamination at issue. The court also holds that the district court appropriately granted the government's request for cleanup costs. Indirect and oversight costs are recoverable in remedial actions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and the company failed to show that the government's attorney fees were inconsistent with the national contingency plan. Lastly, the court rejects the company's challenge to CERCLA on Fifth Amendment grounds.
A prior decision in this litigation is published at 28 ELR 20608.]
Counsel for Appellee
Jacques B. Gelin
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000
Counsel for Appellant
Charles F. Lettow
Cleary, Gottlieb, Steen & Hamilton
1752 N St. NW, Washington DC 20036
(202) 728-2700
Bowman, J. Before Fagg and Piersol,1 JJ.
1. The Honorable Lawrence L. Piersol, Chief Judge, United States District Court for the District of South Dakota, sitting by designation.