ELR Citation: ELR 20721
No(s). CIV-86-1401-P (W.D. Okla. Aug 9, 1990)

In the remedy selection phase of a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) action, the court selects defendants' proposed containment remedy for the Hardage site in Oklahoma instead of the government's more expensive excavation remedy. The court notes that the government's proposed remedy changed so many times and so drastically during this litigation that the court lost confidence in the deliberative process underlying the government's final proposal. The government announced its final proposed remedy so late in the litigation that it is unlikely to have been carefully considered. Although the court initially favored the government's excavation remedy, the government did not present credible evidence concerning the feasibility, safety, and appropriateness of excavation at the site. The court finds that excavation is not appropriate for the site because the placement of drums at the site was random. The Oklahoma State Department of Health vigorously opposed excavation. Further, excavation is not appropriate because of the government's inaccurate estimates of the number of drums in the main pit and barrel mound and the government's erroneous assumption that most of the drums at the site are intact and full of liquid. Evidence that most drums have ruptured or leaked indicates that excavation is not appropriate. Workers would be exposed to dangerous conditions during an excavation operation, including exposure to chemicals, risk of explosion, and heat stress from working in protective equipment during the summer. The Environmental Protection Agency (EPA) did not adequately address methods to control dust and vapor emissions during excavation. EPA's excavation plan would result in significant risk to local residents. The court holds that EPA's excavation remedy does not satisfy the threshold requirements of CERCLA §§106 and 121 and the national contingency plan (NCP) of protecting the public health and welfare and the environment. The court also holds that EPA violated CERCLA §121(f) by failing to provide Oklahoma with an adequate opportunity to review and comment on EPA's proposed remedy. The court also rejects the soil vapor extraction component of the government's remedy.

The court next adopts the defendants' containment remedy, with certain modifications. The defendants' remedy consists of a composite cap over the source areas, liquid recovery wells in the barrel mound, a V-shaped interceptor trench, interceptor wells in the southwest corner of the site, a groundwater treatment system, institutional controls, natural attenuation of alluvial groundwater, and groundwater and surface water monitoring. The court also orders liquid recovery wells to be placed in the main pit. The court finds that this remedy is protective of the public health and welfare and the environment as required by CERCLA §106(a). The remedy will control the surface water exposure pathway, preclude site access and direct contact with waste, control air emissions, preclude use of any affected groundwater, and ensure maintenance of the quality of the North Criner Creek. This remedy complies more fully with the cleanup standards in CERCLA §121 and the NCP than EPA's proposed remedy.

The court denies the government's motion to enter a consent decree under which eight defendants and six federal agency waste generators agreed to pay for and perform certain elements of the government's remedy. The excavation remedy under the decree does not protect public health and the environment. Further, a provision of the decree that cuts off response costs incurred by private parties after the date the complaint was filed is beyond EPA's authority. CERCLA provides EPA with no authority to settle private party response costs.

The court holds that the government is entitled to $3.179 million in supplemental response costs. These costs include Department of Justice direct and indirect costs, EPA indirect costs, rent charges, and prejudgment interest. The court holds that the Hardage site steering committee defendants are entitled to $3.716 million in response costs under CERCLA §107(a)(4)(B). These costs include a security fence, mound slope and site repairs, alternative water supply, well plugging, access agreements, and site maintenance. The steering committee failed to show that certain of its claimed costs are necessary costs of response consistent with the NCP. These costs include bedrock studies, expert panel field investigation, oversight of EPA work, mound characterization studies, drum disposal, remedial design, and hydrological studies. Further, the court holds that costs borne primarily to support the steering committee's litigation position are not recoverable. The court holds that the United States is liable for 8.36 percent of the response costs awarded to the steering committee and for 8.36 percent of EPA's response costs. The United States is not liable for prejudgment interest on any steering committee response costs. The court holds that the steering committee has failed to show that it is entitled to any recoupment because of EPA's cleanup activities at the site.

[Previous decisions in this litigation are published at 17 ELR 20242, 20738, 20741, 21082; 19 ELR 20254; 20 ELR 21307; 21 ELR 20706, 20714.]

Counsel are listed at 21 ELR 20706.