ELR Citation: ELR 21307
No(s). CIV-86-1401-P (W.D. Okla. Dec 8, 1989)

The court holds that the United States is entitled to recover its direct response costs under Comprehensive Environmental Response, Compensation, and Liability Act §107 incurred at a hazardous waste disposal site from owners and operators of the site and from generators and transporters of hazardous waste to the site. The United States presented a prima facie case of entitlement to its direct response costs of over $5.4 million by submitting substantial documentation supporting its claims. The defendants failed to meet their burden of showing that the United States' response costs were inconsistent with the National Contingency Plan or that the response costs were not incurred in connection with the site. Affidavits filed on behalf of the defendants did not raise any genuine issues of material fact relating to the award of response costs, other than the indirect costs of the Department of Justice. The government's failure to consult with the defendants before undertaking response actions at the site does not bar recovery of its response costs, and the inefficiency or redundancy of the government's actions does not bar summary judgment. The defendants failed to present documentation to substantiate their affirmative defenses. The court holds that the United States may recover its indirect response costs associated with the site, but factual issues remain concerning whether an inappropriately high amount of indirect cost has been allocated to the site. The court holds that the United States is entitled to a declaratory judgment of the defendants' liability for future response costs associated with the site. Declaratory judgment of the defendants' future liability may be granted, because it is possible to determine future liability for costs even though it is not possible to determine the costs themselves.

[Previous decisions in this litigation are published at 17 ELR 20242, 20738, 20741, and 21082 and 19 ELR 20254. A related case is published at 13 ELR 20188.]

Counsel for Plaintiff
John R. Barker, Anna L. Wolgast, Steven Novick
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Charles DeSaillan
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-2090

Counsel for Defendants
Kenneth N. McKinney, Robert D. Tomlinson, Mark D. Coldiron
McKinney, Stringer & Webster
BancFirst, 8th Fl., 101 N. Broadway, Oklahoma City OK 73102
(405) 239-6444

Amanda Birrell
Vinson & Elkins
First City Centre, 816 Congress Ave., Austin TX 78701-2496
(512) 495-8400

Jeffrey N. Martin
Hunton & Williams
2000 Pennsylvania Ave. NW, P.O. Box 19230, Washington DC 20036
(202) 955-1500