U.S. v. Gurley, No. 3:00 CV 077 SMR.

CourtUnited States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
Writing for the CourtStephen M. Reasoner
Citation317 F.Supp.2d 870
PartiesUNITED STATES of America, Plaintiff, v. William M. GURLEY, Defendant, and The State of Arkansas, Intervener.
Decision Date02 March 2004
Docket NumberNo. 3:00 CV 077 SMR.
317 F.Supp.2d 870
UNITED STATES of America, Plaintiff,
v.
William M. GURLEY, Defendant, and
The State of Arkansas, Intervener.
No. 3:00 CV 077 SMR.
United States District Court, E.D. Arkansas, Jonesboro Division.
March 2, 2004.

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Charles L. Moulton, Esq., Julie Camille Williams, Esq., Arkansas Attorney General's Office, Little Rock, AR, for intervenor.

James E. Foster, Esq., Akerman, Senterfitt & Eidson, Orlando, FL, for trustee.

Lois J. Schiffer, Esq., Richard Gladstein, Esq., U.S. Department of Justice, Environmental Enforcement Section, Jeffrey Prieto, Esq., U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for plaintiff.

Elton A. Rieves IV, Esq., Kent J. Rubens, Esq., Rieves, Rubens & Mayton, West Memphis, AR, Robert L. Young, Esq., Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., CNL Center at City Commons, Orlando, FL, James W. Gentry Jr., Esq., Spears, Moore, Rebman & Williams, Chattanooga, TN, for defendant.

MEMORANDUM OPINION

STEPHEN M. REASONER, District Judge.


This Court conducted a hearing on Plaintiff's right to reimbursement of response costs incurred or to be incurred at the Gurley Pit Site and South 8th Street Superfund Sites located in northeast Arkansas. The Court finds the United States is entitled to response cost at the

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Gurley Pit Site in the amount of $13,986,191.941, plus interest from July 24, 2002 until the date of judgment, plus post judgment interest at the rate of 1.23% until paid. The Court also finds the United States is entitled to response costs at the South 8th Street Site in the 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 declaratory judgment for all future response costs at the South 8th Street Site. The State of Arkansas is entitled to a declaratory judgment for all future response costs incurred by the State at the South 8th Street Site.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY:

This case has a long and tumultuous history, a brief review of which is required for a thorough understanding of these proceedings. In November, 1987, the United States brought an action under Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9607, against Defendant, William M. Gurley, and others to recover all of its response costs in cleaning up the Gurley Pit Site located in northeast Arkansas. That action was assigned to the Honorable George Howard, Jr. Section 107(a) of CERCLA authorizes the United States or a state to recover from liable parties "all costs of removal or remedial action incurred by the United States ... not inconsistent with the national contingency plan (`NCP')." 42 U.S.C. § 9607(a). On July 14, 1990, Judge Howard issued a Memorandum and Opinion granting the Motion for Summary Judgment filed by the United States as to liability against Mr. Gurley at the Gurley Pit Site (also referred to occasionally in the record as the "Edmondson Pit Site"). United States v. Gurley Ref. Co., et al., No. 3:86CV291, slip op. (E.D. Ark. June 14, 1990). Two years later, Judge Howard issued an Order holding Mr. Gurley and related entitles liable for $1,786,502.00 representing the costs incurred by the United States through February 28, 1990, as well as a declaratory judgment 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, 516 U.S. 817, 116 S.Ct. 73, 133 L.Ed.2d 33 (1995).

In July, 1995, Mr. Gurley filed for bankruptcy in the Middle District of Florida. On April 24, 1996, the United States filed a Proof of Claim in the bankruptcy court against Mr. Gurley for the response costs at the Gurley Pit Site and at another site, the South 8th Street Superfund Site

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("South 8th Street Site"). After a trial in September, 1997, the bankruptcy court denied Mr. Gurley's discharge, held that Mr. Gurley had concealed substantial assets in an effort to avoid the CERCLA judgment against him, and entered a judgment against Mrs. Gurley determining that the concealed assets were property of the bankruptcy 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 the Eleventh Circuit Court of Appeals. Betty Jean Gurley v. George E. Mills, Jr., Trustee, No. 99-13416 slip op., 2000 WL 1480453 (11th Cir. Sept. 20, 2000)(per curiam).

On March 23, 1998, the United States filed an Amended Proof of Claim in the bankruptcy action. Mr. Gurley then filed a Motion to Withdraw the Reference which was granted by the United States District Court for the Middle District of Florida. On February 25, 2000, the Florida District Court transferred the claims of the United States to this Court. The State of Arkansas intervened filing a claim for Declaratory Judgment alleging that Mr. Gurley is liable for any response costs incurred by the Arkansas Department of Environmental Quality ("ADEQ").

II. CURRENT LITIGATION:

The United States filed Motions for Summary Judgment in this action as to the Gurley Pit Site based on the Declaratory Judgment in the former Gurley action before Judge Howard. The United States also filed a Motion for Summary Judgment as to the South 8th Street Site for all response costs incurred and to be incurred in the future. This Court conducted a hearing on the motions and issued an Order dated September 27, 2001, granting the Motions for Summary Judgment in all respects, except as to the factual issue of whether the response costs were inconsistent with the NCP.4 This Court then conducted a court trial on the amount of the response costs in the action. At the conclusion of the trial, the Court directed the parties to file post-trial briefs. The only issues before the Court at this time are 1) the admissibility of payroll cost exhibits; 2) whether the response cost incurred in this action are inconsistent with the NCP; and 3) joint and several liability at the South 8th Street Site.

III. ADMISSIBILITY OF PAYROLL COST EXHIBITS:

During the trial on costs, the Court admitted the summary exhibits5 offered by the government but excluded admission of payroll costs in the summary where the payroll information did not reveal the underlying salary and wage rate. The United States filed a Brief in Support of Motion for Admission (Doc. No. 93) of the payroll costs during the last days of the hearing. Mr. Gurley filed his response (Doc. No. 95) and the United States replied (Doc. No. 96). From the pleadings, the Court finds the payroll costs listed in the summaries are admissible. The payroll reports generated from the Environmental

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Protection Agency ("EPA") Integrated Financial Management System ("IFMS") show the amounts paid and the hours worked per pay period for each EPA regional and headquarters employee who worked on the Gurley Pit Site and South 8th Street Sites.6 The computer printouts detailing payroll costs incurred are admissible pursuant to FRE 1006 since there is sufficient supporting underlying data and the government established that the printouts accurately reflected the data stored in the IFMS computerized central accounting system. EPA Region 6 accountant Dennis McBride, EPA headquarters accountant Charles Young, and the Plaintiff's expert certified public accountant, Wiley Wright, all testified at length as to the integrity, accuracy, and reliability of the EPA computer systems and printouts. In addition, Mr. Wright testified that he tested whether the payroll computer printouts contained in Government's Exhibits 2 and 3 accurately reflected the data stored in the IFMS computer system by comparing the information contained in those printouts to the payroll data stored in the IFMS system. For each of the instances checked, the payroll information was identical to that separately generated and printed from the data stored in the IFMS system. For these reasons, the Court finds those portions of Plaintiff's Exhibit 2 and 3 dealing with payroll costs admissible.

IV. RESPONSE COSTS:

At the conclusion of the hearing, the Court directed the parties to file briefs addressing each item of cost and detailing the evidence, or lack thereof, with respect to each item. However, in Mr. Gurley's Post-trial Brief (Doc. No. 105) and Proposed Findings and Conclusions (Doc. No. 106), he devotes well over half of his brief to a re-argument of the defenses of statute of limitations and lack of subject matter jurisdiction. Mr. Gurley concedes, on the second page of his fifty page brief, that he "recognizes full well that this court has previously rejected his defenses of limitations and failure to properly commence a civil action." (Def.'s Post-trial Br. at 2.) This Court has found these arguments to be without merit on more than one occasion7 and will not address them again.

With respect to the Gurley Pit Site, the government seeks the following response costs:

1) EPA Region 6 and Headquarter payroll expenses;

2) EPA Region 6 and Headquarter travel expenses;

3) EPA indirect costs8,

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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) prejudgment interest; and

9) Department of Justice (DOJ) enforcement costs.

Specifically, the Cost Summary10 reveals:

GURLEY SITE 06-39
                 EPA Principal from 3-1-90 to 6-30-01
                 (no ATSDR) $ 9,392,225.67
                 INTEREST (from 9-10-90 to 7-24-02
                 (no ATSDR) 4,945,957.85
...

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6 practice notes
  • United States v. Shell Oil Co., Case No.: CV 91-00589-CJC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • December 10, 2020
    ...under CERCLA was not binding precedent because it did not address the rights of the federal government); United States v. Gurley , 317 F. Supp. 2d 870, 882 (E.D. Ark. 2004), aff'd , 434 F.3d 1064 (8th Cir. 2006) (declining to apply cases rejecting recovery under Section 107 and limiting rec......
  • In re Gurley, Bankruptcy No. 6:95-bk-03833-ABB.
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Middle District of Florida
    • November 22, 2006
    ...6, 2005. 26. Id. 27. Main Case Doc. Nos. 85, 98. 28. See Main Case Doc. Nos. 85, 98, 99, 184, 191. 29. United States of Am, v. Gurley, 317 F.Supp.2d 870 (E.D.Ark.2004), aff'd, 434 F.3d 1064 (8th Cir.2006) (affirming the district court's judgment entered against Gurley and the denial of his ......
  • Gurley v. City of West Memphis, Ar, No. 3:04CV00148JLH.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • June 13, 2007
    ...incurred by the United States at the site as well as response costs to be incurred in the future at the site. United States v. Gurley, 317 F.Supp.2d 870, 875 (E.D.Ark. On December 19, 2000, a consent decree was entered between the United States and a group of more than 170 PRPs, not includi......
  • In Re: Asarco LLC, Case No. 05-21207
    • United States
    • U.S. Bankruptcy Court — Southern District of Texas
    • September 29, 2010
    ...bear the full cost of response actions, necessarily including both direct costs and indirect costs. UnitedPage 10 States v. Gurley, 317 F. Supp. 2d 870, 878 (E.D. Ark. 2004). The United States, therefore as a matter of law and policy, routinely recovers direct and indirect response and enfo......
  • Request a trial to view additional results
6 cases
  • United States v. Shell Oil Co., Case No.: CV 91-00589-CJC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • December 10, 2020
    ...under CERCLA was not binding precedent because it did not address the rights of the federal government); United States v. Gurley , 317 F. Supp. 2d 870, 882 (E.D. Ark. 2004), aff'd , 434 F.3d 1064 (8th Cir. 2006) (declining to apply cases rejecting recovery under Section 107 and limiting rec......
  • In re Gurley, Bankruptcy No. 6:95-bk-03833-ABB.
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Middle District of Florida
    • November 22, 2006
    ...6, 2005. 26. Id. 27. Main Case Doc. Nos. 85, 98. 28. See Main Case Doc. Nos. 85, 98, 99, 184, 191. 29. United States of Am, v. Gurley, 317 F.Supp.2d 870 (E.D.Ark.2004), aff'd, 434 F.3d 1064 (8th Cir.2006) (affirming the district court's judgment entered against Gurley and the denial of his ......
  • Gurley v. City of West Memphis, Ar, No. 3:04CV00148JLH.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • June 13, 2007
    ...incurred by the United States at the site as well as response costs to be incurred in the future at the site. United States v. Gurley, 317 F.Supp.2d 870, 875 (E.D.Ark. On December 19, 2000, a consent decree was entered between the United States and a group of more than 170 PRPs, not includi......
  • In Re: Asarco LLC, Case No. 05-21207
    • United States
    • U.S. Bankruptcy Court — Southern District of Texas
    • September 29, 2010
    ...bear the full cost of response actions, necessarily including both direct costs and indirect costs. UnitedPage 10 States v. Gurley, 317 F. Supp. 2d 870, 878 (E.D. Ark. 2004). The United States, therefore as a matter of law and policy, routinely recovers direct and indirect response and enfo......
  • Request a trial to view additional results

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