City of Wichita, Ks v. Trustees of Apco Oil Corp.
| Citation | 306 F.Supp.2d 1040 |
| Decision Date | 31 December 2003 |
| Docket Number | No. CIV.A.98-1360-MLB.,CIV.A.98-1360-MLB. |
| Parties | CITY OF WICHITA, KANSAS, Plaintiff, v. TRUSTEES OF THE APCO OIL CORPORATION LIQUIDATING TRUST, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
Brian D. Williams, Douglas Y. Curran, Joan K. Archer, Richard L. Green, Robert L. Driscoll, Stinson, Morrison, Hecker LLP, Kansas City, MO, Gary E. Rebenstorf, Joe A. Lang, Wichita, KS, for Plaintiff.
John K. Power, Leonard L. Wagner, Kasey A. Rogg, Kevin M. Bright, Husch & Eppenberger, LLC, Kansas City, MO, Alexander B. Mitchell, II, Klenda, Mitchell, Austerman & Zuercher LLC, Wichita, KS, Jeffrey B. Aaronson, Neal H. Weinfield, Randy J. Curato, Richard E. Hill, Thor W. Ketzback, Bell, Boyd & Lloyd, Chicago, IL, for Defendants.
Gordon Kratz, pro se, Loves Park, IL, for Defendant.
TABLE OF CONTENTS
I. INTRODUCTION ................................................... 1045
II. SUMMARY OF THE DISPUTE ......................................... 1046
III. CERCLA LIABILITY ............................................... 1048
A. Covered Person Under CERCLA ................................. 1052
B. Release of any Hazardous Substance .......................... 1056
1. APCO ..................................................... 1057
2. Reid Supply Company ...................................... 1069
3. Land Tool Company ........................................ 1075
4. Tri-Supply ............................................... 1076
C. The Releases Caused Plaintiff to Incur Costs ................ 1076
D. Response Action Compliance with the NCP ..................... 1076
1. The NCP .................................................. 1077
2. General Description of City's Response Action ............ 1078
3. Standard of Review for KDHE Determinations ............... 1081
4. Presumption of NCP Compliance ............................ 1082
5. Defendants' Contentions .................................. 1084
6. Conclusion ............................................... 1090
E. Necessity of Response Costs ................................. 1090
1. CDM Costs ................................................ 1092
2. KDHE Costs ............................................... 1093
3. Miscellaneous Vendor Costs ............................... 1094
4. Stinson, Mag & Fizzell Costs ............................. 1095
5. City Payroll Costs ....................................... 1095
6. Motor Pool Expenses ...................................... 1096
7. Summary of Recoverable Costs ............................. 1096
F. Arguments Raised in Defense ................................. 1096
IV. ALLOCATION OF RESPONSE COSTS ................................... 1097
A. Equitable Factors ........................................... 1098
1. Gore Factors ............................................. 1098
2. Other Equitable Factors .................................. 1101
3. Conclusions Regarding Equitable Factors .................. 1105
B. Methods for Allocating Response Costs ....................... 1106
1. Motion to Strike Testimony of Michael Smith .............. 1107
2. ALT's Modeling and Allocation ............................ 1110
3. Reid's Allocation ........................................ 1113
4. Tri-Supply's Allocation .................................. 1114
5. Land Tool Company's Allocation ........................... 1115
C. Prejudgment Interest ........................................ 1115
D. Declaratory Judgment ........................................ 1117
V. REID'S MOTION TO RECONSIDER .................................... 1118
VI. CONCLUSION ..................................................... 1120
APPENDICES .......................................................... 1120
Plaintiff City of Wichita (City) brings this private party action against (1) the Trustees of the APCO Oil Corporation Liquidating Trust (ALT); (2) Reid Supply Company, Inc., Charles P. Trombold, David G. Trombold and Walter S. Trombold; (3) Land Tool Company and E.H. Land; and (4) Tri-Supply Company, Inc., and Gordon Kratz, pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq., as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub.L. No. 99-499, 100 Stat. 1613 (1986). The City seeks to recover past response costs from defendants, in the form of contribution pursuant to CERCLA § 113(f). 42 U.S.C. § 9613(f). The City also seeks declaratory relief that two of the defendants, ALT and Reid Supply, are responsible for future response costs, pursuant to CERCLA § 113(g)(2). 42 U.S.C. § 9613(g)(2).
At the outset, it is important to comment on the size and complexity of this case and on the level of professionalism of counsel and their support staff. This Memorandum Decision represents the culmination of countless hours and resources expended by each of the parties involved in preparing for and litigating the case, and by the court in attempting to decide the many factual and legal issues. The initial complaint was filed on October 7, 1998, and was the first of over 1,440 documents filed in the case. Numerous pretrial rulings were made, either by the magistrate judge or by this court.1 The trial itself included 8 weeks of testimony concerning CERCLA's various complexities and the technical issues related to the parties' potential liability, and an on-site visit during which the court and counsel viewed first-hand the geographic area at issue. The parties provided the court with an array of computer monitors in the courtroom which allowed the court, counsel, and all 38 witnesses immediate access to the hundreds of exhibits presented during the trial. Technicians were present throughout the trial to operate the computer equipment and were very efficient in doing so. The trial ultimately resulted in a transcript exceeding 5,000 pages. All counsel conveyed a level of preparation and skill in their representation that surpassed the court's expectations in light of the difficult nature of the subject matter. The court sincerely appreciates the efforts made by all those involved in resolving this case.
In reaching its decision, the court has thoroughly considered the record in its entirety, including the voluminous trial transcript, the post-trial briefing and the court's own assessments of witness credibility. For the reasons stated, the court rules that ALT, Reid Supply Company, Land Tool Company, Walter Trombold, and E.H. Land are liable for past response costs, but only for amounts proportional to the groundwater contamination caused by the respective business entities. The court furthermore declares that ALT and Reid Supply are liable for future groundwater remediation costs in proportion to their individual contributions to the groundwater contamination at the site. Finally, the court declares that ALT and Reid will be liable for any future source control measures at the former APCO and Reid Supply facilities, respectively.
In 1986, the Kansas Department of Health and Environment (KDHE), an administrative agency of the State of Kansas, collected groundwater samples at multiple locations within the Gilbert and Mosley Site (the Site) and discovered high levels of chlorinated volatile organic compounds, also known as chlorinated solvents. Chlorinated solvents do not occur naturally either in soil or groundwater. They include the commercially-available products Tetrachloroethene or Perchloroethylene (PCE) and Trichloroethene (TCE), and their degraded products, Dichloroethene (DCE) and Vinyl Chloride (VC), neither of which is commercially available. The Site, located near the center of Wichita, Kansas, is named after the intersection of Gilbert Street and Mosley Street, which lies near the middle of the contaminated area. The boundaries of the Site have been delineated through a series of investigations conducted by the KDHE and others since 1986. The Site encompasses an area of roughly four and a half miles from north to south and one to two miles from east to west. It covers approximately 3,850 acres of both residential and commercial property. The Site includes about 8,000 separate parcels of land, and the City itself owns hundreds of parcels within the Site. The groundwater at the Site generally flows in a southerly direction, although it can shift to the south/southwest or the south/southeast in certain locations. The chlorinated solvents moving within the flow of groundwater have created "plumes" of contamination, designated plumes A-F. The plumes lie beneath approximately 1,800 acres of land and contain over 2.75 billion gallons of ground water. See App. C-1. The principal contamination plumes involved in this case are A, B, and E.
Following the discovery, the KDHE entered into a Multi-Site Cooperative Agreement with the EPA (EPA/KDHE multi-site agreement), which required investigations pursuant to CERCLA and the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), to determine whether the Site, along with other areas, qualified for the EPA's National Priorities List (NPL).2 The City became aware of the groundwater contamination upon completion by the KDHE of a Listing Site Investigation in August 1990 and it subsequently entered into an agreement with the KDHE in March 1991 to address the resulting threat to public health and the environment and to avert further economic problems. The agreement was entitled "Settlement Agreement for [RI/FS], and for Certain Remedial Actions to be...
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