US v. Gurley Refining Co.

Decision Date27 March 1992
Docket NumberNo. J-C-87-291.,J-C-87-291.
PartiesUNITED STATES of America, Plaintiff, v. GURLEY REFINING CO., et al., Defendants.
CourtU.S. District Court — Eastern District of Arkansas

COPYRIGHT MATERIAL OMITTED

Chuck Banks, U.S. Atty. by A. Douglas Chavis, III, Asst. U.S. Atty., Little Rock, Ark., Craig E. Johnson, Dept. of Justice, Washington, D.C., for plaintiff.

Bob Lawson, Jr., Lincoln & Lawson, Little Rock, Ark., Elton A. Rieves, IV, Rieves & Mayton, West Memphis, Ark., James W. Gentry, Jr., Gentry & Boehm, Chattanooga, Tenn., D. Allan Gates, Mitchell, Williams, Selig, Gates & Woodyard, Little Rock, Ark., for defendants.

Larry Gurley, pro se.

MEMORANDUM OPINION AND ORDER

GEORGE HOWARD, Jr., District Judge.

The United States of America, on behalf of the United States Environmental Protection Agency (EPA), brings this action pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9601 et seq. to recover the costs it has incurred in connection with the response activities related to the Gurley Oil Pit Site in Edmondson, Arkansas. The United States also seeks a declaratory judgment of defendants' liability for all future costs it will incur in response to future releases or threats of releases posed by the Site.

STATUTORY BACKGROUND

CERCLA was enacted in December 1980 "to initiate and establish a comprehensive response and financing mechanism to abate and control the vast problems associated with abandoned and inactive hazardous waste disposal sites." H.R.Rep. No. 1016(I), 96th Cong.2d Sess. 22, reprinted in 1980 U.S.Code Cong. and Admin News 6119, 6125. CERCLA was reauthorized and amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), which established the Hazardous Substance Superfund (Superfund), a fund used to finance the government's response to actual or threatened releases of hazardous materials.

CERCLA authorizes the Administrator of the EPA to respond with "remedial" or other "removal" action against any threatened or actual release of any hazardous substance that may pose an imminent and substantial public health threat. 42 U.S.C. § 9604(a).1

Under the statutory scheme, EPA has various options available to determine the most appropriate response to an actual or threatened release of hazardous substances into the environment. See U.S. v. Ottati & Goss, Inc., 900 F.2d 429, 433 (1st Cir.1990) (discussion of four separate statutory paths that EPA might follow to clean up hazardous waste sites). For example, under § 106(a) of CERCLA, 42 U.S.C. § 9606(a), EPA may either seek equitable relief from a court or issue an administrative order requiring responsible parties to abate actual or threatened releases of hazardous substances or to take other appropriate actions. Under Section 104, 42 U.S.C. § 9604, EPA is authorized to undertake "response" activities to address the release or threatened release of a hazardous substance into the environment. Response activities include "removal" and "remedial" actions. 42 U.S.C. § 9601(25).

Removal actions are short-term actions taken to halt any immediate risks posed by hazardous wastes, and include such actions as "may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment ..." 42 U.S.C. § 9601(23). Removal actions may precede remedial action which includes relatively long-term or permanent abatement activities. 42 U.S.C. § 9601(24).

In determining the appropriate response action, the Administrator "may undertake such investigations, monitoring, surveys, testing, and other information gathering" necessary to identify the existence and extent of the release or threat of release, the source and nature of the hazardous substances involved, and the extent of danger to the public health or welfare or to the environment. In addition, the Administrator may undertake a wide variety of studies or investigations necessary or appropriate to plan and direct the response actions. The Administrator may then bring an action to recover the costs incurred from those parties found to be responsible for the hazardous waste discharge. See 42 U.S.C. § 9604(b) and 9607(a).

Response actions must be consistent with the National Contingency Plan (NCP), which consists of EPA regulations establishing the methods and criteria for determining appropriate response to the release of hazardous substances. See 40 C.F.R. § 300.1 et seq. "Before any remedial action is undertaken, the site is studied, alternatives are examined, and a preferred cleanup remedy is selected in accordance with the administrative procedures set forth in the NCP. This process results in a site-specific study called a Remedial Investigation/Feasibility Study (RI/FS). See 40 C.F.R. § 300.430(d)-(f)." Cooper Industries, Inc. v. U.S.E.P.A., 775 F.Supp. 1027, 1031 (W.D.Mich.1991).

After providing an opportunity for public comment concerning the proposed plan, the EPA selects the remedy that it plans to implement at the site and issues a "Record of Decision" (ROD) setting forth the final remedial plan. 40 C.F.R. § 300.435.

The EPA may respond to the problem by either implementing the remedial action itself, or it may seek to compel a third party to undertake the response action. If the EPA responds directly undertaking the removal or remedial action, it may then seek to recover its costs from the responsible parties. 42 U.S.C. § 9607(a).

FACTUAL BACKGROUND

The Gurley Oil Pit site is located in Crittenden County, about 1 mile north of Edmondson, Arkansas. The site lies entirely within the watershed of the Fifteen Mile Bayou which is a tributary of the St. Francis River, which is a tributary to the Mississippi River. The site is located within the 100 year floodplain of Fifteen Mile Bayou.

The pit was excavated some time prior to 1970 when the Arkalite Company removed soils for use in aggregate production. In July, 1970, Gurley Refining Company, Inc. (hereinafter "Gurley Refining")2 leased the pit area for a period of ten years from the landowner, R.A. Caldwell, for use as a disposal site for secondary oil refining wastes. The pit was divided into three smaller waste disposal cells when Gurley Refining installed two cross-levees in the fall of 1970.

In September of 1970, Gurley Refining obtained a waste disposal permit from the Arkansas Department of Pollution Control and Ecology (ADPC & E). From then until late 1975, Gurley Refining used the pit to dispose of sludge and filter material from the rerefining of used motor oil.

In May, 1975, an inspection by ADPC & E revealed that Gurley Refining was discharging contaminated stormwater from the pit into Fifteen Mile Bayou without treatment. Gurley Refining was convicted on charges of permit violation and was given one year to implement site cleanup and remedial measures. In October, 1975, Gurley Refining closed part of its refining operation which generated wastes disposed at the site.

In December 1975, Gurley Refining returned its permit to ADPC & E stating that the waste disposal had ceased and that the site was secure. During 1978, personnel from the U.S. Fish and Wildlife Service reported to EPA and ADPC & E that overflows from the pit had damaged fish and waterfowl in the bayou. EPA directed work to treat and discharge the pit waters. By July of 1978, the spill was cleaned up and water levels in the pit lowered sufficiently to provide adequate capacity for further rainfall.

During April 1979, after heavy rains, the pit overflowed, releasing approximately 450,000 to 500,000 gallons of oil and oily wastes to surrounding farmlands, roads, and Fifteen Mile Bayou. EPA attempted to induce both Caldwell and Gurley Refining to conduct a cleanup operation. When they would not do so, EPA cleaned up the site under Section 311 of the Clean Water Act.

Periodic rains continued to fill the pit and pumping was required throughout the summer and fall of 1979. An inspection by ADPC & E in August, 1981, indicated that conditions at the site were essentially unchanged, although the trench installed by EPA in 1979 had caved in.

In August, 1983, the site was listed on the National Priorities List (NPL). In December, 1983, EPA authorized a remedial investigation (RI) to determine the nature, magnitude, and extent of contamination at the site. The RI work was conducted from February 1984 until May 1985. Analyses of the results of the RI indicated the presence of a complex mixture of oil and oil waste. Numerous volatile organic and inorganic substances were found in the sludge, however, no significant level of contaminants were present in the subsurface soil samples. Organic and inorganic contaminates were present at low concentrations in the ground water. The possibility of lab contamination existed.

The Feasibility Study (FS) released April 18, 1986, contained four alternatives for the source control remedy.3

EPA selected the third alternative, a remedy which includes stabilization of the sludge, contaminated soil and sediment, and disposal of them in an on-site constructed RCRA landfill. EPA estimated the cost of the remedial action to be about $6 million, which includes costs for construction of the RCRA landfill cell, stabilization of the waste, backfilling of the excavated area and construction of flood protection, and onsite treatment of contaminated water. The estimated costs also includes annual groundwater monitoring, maintenance of the monitoring wells, cell cap and flood protection.

The EPA in its Enforcement Decision Document dated October 6, 1986, found that the alternative is "a cost effective remedy that provides adequate protection of public health, welfare, and the environment." (AR 100, pg. 002327).

The United States then brought...

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