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United States v. Ottati & Goss, Inc.

ELR Citation: 18 ELR 20773
Nos. No. C80-225-L, 694 F. Supp. 977/28 ERC 1683/(D.N.H., 03/17/1988) Damages phase

The court issues its rulings in the damages phase of an action brought by the United States, New Hampshire, and the the town of Kingston under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Resource Conservation and Recovery Act, the Federal Water Pollution Control Act (FWPCA), state water pollution and nuisance law, and municipal ordinances. The court first holds that the standard for cleanup of soil contaminated with polychlorinated biphenyls is the 50 parts per million (ppm) standard in place when defendant commenced its partial cleanup of one of the sites in 1984, not the 20 ppm standard that the Environmental Protection Agency (EPA) later decided to impose. The court holds that the cleanup at this site meets the cleanup standards to the maximum extent practicable. Although the site probably can never be completely cleaned up, the court concludes that it is reasonably well cleaned up and that it would be unfair to allow EPA to impose more stringent cleanup requirements than existed when defendant started the cleanup. The court also holds that defendant's cleanup of the soil contamination substantially cleaned up the volatile organic compounds (VOCs).

The court holds that it has no jurisdiction under CERCLA §113(a) to consider a challenge to EPA's decision to list the two sites as a single site on the national priorities list. The court holds that the groundwater contamination at the site must be cleaned up to the greatest extent feasible. The court holds that three VOCs present in the groundwater must be remediated to their maximum contaminant levels of five parts per billion. Other hazardous substances in the groundwater, including phenols and metals, must alsobe treated to drinking water quality. The court holds that defendants must perform EPA's selected groundwater remedy. EPA's selection of a pump and treat method instead of natural attenuation is consistent with CERCLA §121(b)'s requirement that the remedy significantly and permanently reduce the mobility and toxicity of hazardous substances to the maximum extent practicable. Since the installation of the system in the marsh could damage valuable wetlands, the court holds that a decking system or mounting equipment should be used. The court holds that defendants found liable for the contamination, including EPA, are liable for EPA's costs in cleaning up the groundwater.

The court next assesses the following costs against defendants: demolition of a contaminated building, fire department services, testing and monitoring expenses, EPA payroll costs during drum removal, fencing, field investigation, organization of case files and preparation of evidence profile samples, technical support, trial preparation, expert testimony, photographic analysis, preliminary natural resource surveys by the Department of the Interior, payroll and travel for EPA regional and headquarters personnel but no indirect costs necessary to operate the Superfund program, and EPA oversight of the development of the remedial investigation/feasibility study under a cooperative agreement with New Hampshire. The court reduces the United States' request for attorneys fees by 50 percent based on the conduct of EPA and Justice Department counsel at both phases of the trial. The court also reduces the award for travel costs for Justice Department attorneys by 50 percent. The court holds that the United States is not entitled to prejudgment interest, since its attorneys have, among other things, ignored court orders, been sanctioned for delaying the liability phase of the case and attempted to recoup these sanctions in the damages phase, and misled the court about its authority to settle. The court holds that one defendant is not entitled to a direct equitable offset against its ultimate damage liability for the $1.5 million it spent on a voluntary cleanup of a portion of the site. Although spending substantial time and money on its cleanup effort, defendant did not successfully clean up the site and failed to adequately document its expenses. The court holds, however, that defendant's efforts warrant an indirect credit: if EPA decides to aerate or incinerate the area excavated by defendant, EPA does so at its own expense. The court holds that EPA must also pay for the costs of incinerating soil containing PCBs under the 50 ppm standard in place when defendant began its cleanup. The court holds that groundwater monitoring costs shall be allocated equally among the parties. The court holds that CERCLA §113(j)(2), which was added by the 1986 amendments and provides that EPA's selection of a response action is judged under the arbitrary and capricious standard of review, does not apply to this case since the court did not limit its findings to the administrative record. The court next assesses the costs incurred by New Hampshire and the town of Kingston against defendants. The court holds that one defendant must pay a $5,000 civil penalty under the FWPCA for discharges without a national pollutant discharge elimination system permit.

[The decision in the liability phase is digested at 16 ELR 20763.]

Counsel for Plaintiffs
Joyce A. Rechtschaffen
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4169

Counsel for Defendants
David M. Copithorne
Copithorne & Copithorne
P.O. Box 1139, Laconia NH 03246-1139
(603) 524-8320