Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR REMEDY SELECTION PHASE PHILLIPS, District Judge. I. INTRODUCTION This Order arises from the trial of a bifurcated portion of a CERCLA case. The trial involved the selection of a remedy for the cleanup of toxic wastes at the Hard-age Superfund Site (“Hardage Site”), a closed industrial waste disposal site located near the town of Criner, Oklahoma. The parties have presented the Court with competing remedies. The plaintiff United States of America advances an “excavation” remedy that seeks to remove a substantial portion of the wastes and hazardous substances from the site. A second major component of the government’s remedy involves “soil vapor extraction,” a technology developed to remove highly toxic and mobile compounds from the subsurface. The defendants, on the other hand, advance a “containment” remedy, which is designed to pump large quantities of waste from the site, while at the same time leaving substantial volumes of hazardous substances in the subsurface. The defense theory relies on a combination of natural bedrock features and man-made hydraulic barriers to create a “bathtub” effect, which, according to the Hardage Steering Committee (“HSC”) defendants, will contain the wastes and hazardous substances that are not pumped out. The United States estimates that its remedy will cost approximately $70 million. However, the defendants contend that the costs of the government’s proposed remedy, including major repair contingencies, operation, and maintenance, will be $150 million. On the other hand, the defendants estimate their remedy will cost approximately $54 million. The government generally agrees with this estimate. The defendants further argue that the site could have been cleaned up under a plan proposed in 1982 by the Oklahoma State Department of Health (“OSDH”) at a cost, in 1989 dollars, of $17.75 million. The government characterizes the defense proposal as “peace in our time.” The government argues that all containment remedies fail with the only question being when. The defendants, on the other hand, portray the government’s remedy as unscientific, costly, and a product of “slavish adherence” to unsound litigation strategy. The defendants also allege that the government’s proposed remedy was a “moving target” that changed substantially as the remedy trial drew closer. As discussed more fully below, the Court divided the entire Hardage Site litigation into four major phases: (1) a remedy selection phase; (2) a liability phase; (3) a third-party claims phase; and (4) a cost allocation phase. Because of the critical nature of the remedy disputes in the case, the Court and the parties elected to proceed first with the Remedy Phase. Although the parties’ estimates of the time necessary for trial of the Remedy Phase ranged from 52 days to several months, the Court allocated only 20 days. However, the trial was concluded in just 11 days, in part because of the streamlined procedures the Court adopted, and, in part because of the extremely high caliber of legal representation on both sides of the lawsuit. The streamlined nonjury trial procedure involved the submission of witness affidavits in lieu of direct examination on most points. The parties were given an opportunity to present both supplemental direct examination and full cross-examination of the witnesses during trial. As ordered by the Court, the parties submitted comprehensive stipulations on undisputed matters. The Court has reviewed and considered the testimony of all of the 45 trial witnesses. In addition, the Court has examined more than 8,000 pages of affidavits and deposition transcripts, 250 pages of stipulations, and more than 470 exhibits introduced by the parties at trial, totaling more than 150,000 pages of record. As a result of the trial, the Court is convinced that the United States has not carried its burden of proof and has not convinced the Court of the propriety of its proposed remedy. Moreover, the Court is convinced that the HSC defendants’ proposed containment remedy is markedly superior to the government’s proposed remedy. The findings of fact and conclusions of law set forth below resolve the remedy issue in favor of the HSC defendants. In addition, this Order sets forth the Court’s rulings on the other claims and matters that were at issue in the remedy trial, including: the Consent Decree, the United States’ supplemental response cost claim, the HSC defendants’ response cost claim, and other equitable defenses asserted against the United States. II. PARTIES AND APPEARANCES The plaintiff was represented by the following counsel for the Remedy Phase: John R. Barker, trial attorney Department of Justice Anna Wolgast, trial attorney Department of Justice Kurt Weissmuller Department of Justice Steven Novick Department of Justice Gary S. Guzy Department of Justice Bruce Buckheit Department of Justice Kalyn C. Free Department of Justice William Merrill Department of Justice Jon Lipshultz Department of Justice Dianne M. Shawley Department of Justice Jerry Schwartz Department of Justice Charles de Saillan Environmental Protection Agency Steven Mullins United States Attorney’s Office, Western District of Oklahoma Thomas Curtis United States Air Force Several groups of defendants, as well as individual defendants, participated in the Remedy Phase. The HSC defendants made an appearance to oppose the imposition of the United States’ proposed remedy, to oppose approval of the Consent Decree, and to offer their own proposed containment remedy for implementation at the Hardage Site. Earlier, the HSC defendants had stipulated to liability. The HSC defendants include: Advance Chemical Co.; Allied-Signal, Inc.; AT & T Technologies, Inc.; Ashland Oil, Inc.; Atlantic Richfield Co.; Borg-Warner Corp.; BULL HN Information Systems, Inc. (formerly Honeywell Bull, Inc.); Exxon Corp.; Bridgestone/Firestone, Inc.; GenCorp, Inc.; Magnetic Peripherals, Inc.; Mare-mont Corp.; McDonnell Douglas Corp.; Mobil Chemical Co.; Nalco Chemical Co.; Oklahoma Gas & Electric Co.; Oklahoma Publishing Co.; Rockwell International Corp.; Texaco Refining and Marketing, Inc.; Texas Instruments, Incorporated; Uniroyal, Inc.; UOP, Inc.; Westinghouse Electric Corp.; Weyerhaeuser Co.; and Powell Sanitation Service, Inc. Common counsel provided primary representation for the HSC in the remedy trial. Kenneth N. McKinney, Robert D. Tomlin-son, Mark Coldiron, and Dawn Northup served in this capacity. Certain other attorneys provided separate representation for individual HSC generator defendants and participated in various aspects of the trial. These corporations and their attorneys included: Jerome T. Wolf AT & T Technologies Carl Helmstetter AT & T Technologies Allan Gates Oklahoma Publishing Co. Jeffrey N. Martin Oklahoma Gas & Electric Co. James C. Morriss Bridgestone/Firestone, Inc. Stephen Fink Bridgestone/Firestone Tire & Rubber Company Walter J. Hryszko Exxon Corporation Michael D. Graves Honeywell, Magnetic Peripherals, and McDonnell Douglas Corp. Howard Seitzman Borg Warner Corp., Texas Instruments, Incorporated Charles W. Shipley Atlantic Richfield Co., Ashland Chemical Co., and Maremount Co. Amanda G. Birrell Nalco Chemical Co. Other defendants and third-party defendants appeared through the following counsel: Steve McKinney Oklahoma National Stock Yards Co. Gavin Mclnnis Ralph L. Lowe John D. White JOC Oil Exploration Co., Inc. Ross Plourde Double-Eagle Refining Co. As reflected by the trial record, participation at trial by counsel for the other defendants and the third-party defendants was minimal. Virtually all of the examination was conducted by common counsel for the HSC defendants. Another group of defendants who participated in the Remedy Phase consisted of the consent decree defendants. These are the defendants who, on the eve of trial, entered into a Consent Decree with the United States. Under the provisions of the Consent Decree filed on November 21, 1989, the consent decree defendants agreed to pay for, and to perform, certain elements of the United States’ desired remedy for the Hardage Site. The consent decree defendants who made appearances to support the government’s proposed remedy and to advocate the approval of the Consent Decree, and their counsel, included: Andy Coats Cato Oil and Grease Co., Kerr-McGee Refining Corp. Leanne Burnett Kerr-McGee Jeanie McLemore L & S Bearing Co. Joseph F. Guida L & S Bearing Co., and Rotex Corp. Steve LeSatz United States Pollution Control, Inc. Irwin Steinhorn United States Pollution Control, Inc. All counsel are to be complimented on their professionalism throughout the trial as well as during the other aspects of this case. With minor exceptions, each attorney’s in-court appearances and written submissions exhibited an exceptionally high level of preparation, a good grasp of the legal issues, submission of the most current legal and statutory authority, and respect for of the Court and fellow attorneys. Just as the Court inherited this litigation from another judge of this district, a number of the attorneys who participated in the trial inherited the case from others. As a result of the professionalism and spirit of cooperation, the case was tried quickly and thoroughly. III. ABBREVIATIONS The Court and the parties agreed upon certain abbreviations and citation forms for purposes of the findings. The abbreviations used by the Court: Aff. Affidavit App. Appendix ARAR Applicable or Relevant and Appropriate CERCLA Comprehensive Environmental Response, Compensation, and Liability Act DE Defense Exhibit Decl. Declaration DNAPL Dense Non-Aqueous Phase Liquids DOJ EPA Department of Justice United States Environmental Protection Agency ft. Feet fig. Figure gals. Gallons GE Government Exhibit HSC Hardage Steering Committee LNAPL Light Non-Aqueous Phase Liquids NAPL Non-Aqueous Phase Liquids NCC North Criner Creek NCP National Contingency Plan OSDH Oklahoma State Department of Health OSHA Occupational Safety and Health Administration % Percent PCB Polychlorinated biphenyl ¶ Paragraph ppb Parts per billion ppm Parts per million RCRA Resource Conservation and Recovery Act ROD Record of Decision SARA Superfund Amendments and Reauthorization Act of 1986 US United States VOCs Volatile Organic Compounds yrs. Years Following is an explanation of the citation forms used in this Order. Affidavits Aff. at_ Witness’ Last Name Page Declarations Decl. at ____ Witness’ Last Name Page Rebuttal Affidavits R. Aff. at_ Witness’ Last Name Page Rebuttal Declarations R. Decl. at_ Witness’ Last Name Page Supplemental Rebuttal Affidavits S. R. Aff. at_ Witness’ Last Name Page Supplemental Affidavits S. Aff. at_ Witness’ Last Name Page Supplemental Declarations S. Decl. at_ Witness’ Last Name Page Stipulated Cross-Examinations Stip. Cross at_ Witness’ Last Name Page Trial Transcripts _ at_ Volume Page Orders, Briefs, Motions, and Memoranda - at-(-) (-) Designation on document Page or subdivision Date. Filing number See Uniform Abbreviations filed December 26, 1989. These abbreviations will be utilized by the Court in this Order. IV. STIPULATIONS A number of stipulations among the parties expedited the trial. Because some of the stipulations assist in a fuller understanding of the case, they are set out in their entirety. However, because of their length, the complete stipulations are attached as exhibits. The Court adopts all of the stipulations for purposes of this Order. The stipulations are contained in the following pleadings filed in this case: Filing Date Pleading ill (T> Hi 11721/89 Statement of Uncontested Facts. to to I-4 to 11/22/89 Supplemental Joint Stipulation CO to CO co 11/17/89 Stipulation Regarding Analytical Data: Samples On Which The Parties Agree to to O t — * 2190 11/17/89 Stipulation Regarding Analytical Data: Samples On Which the Parties Disagree. V. ADDITIONAL PROCEDURAL HISTORY AND BACKGROUND A. Site Location and Operating History Defendant Royal N. Hardage owned and operated a waste disposal site located in rural McClain County, Oklahoma, approximately 15 miles southwest of Norman and one-half of a mile west of Criner. The Oklahoma State Department of Health (“OSDH”) permitted the Hardage/Criner site as an Industrial Hazardous Waste Land Disposal Facility in September 1972. The site began operating in September 1972 and closed in November 1980. Over the eight-year period of operation, in excess of 20 million gallons of waste were transported to the Hardage Site for storage and/or disposal. Supplemental Joint Statement of Uncontested Facts para. 48 (Nov. 21, 1989) (filing No. 2212). Originally, liquids and sludges from drums and tank trucks were discharged directly into unlined pits. As disposal areas filled, wastes were transferred to other areas. Later, drums were no longer emptied, but piled into what became the drum or barrel mound. Ultimately, the site consisted of chemical impoundments including the large unlined, unsealed “main pit,” a series of small temporary pits, and two large mounds (“barrel” and “sludge” mounds). The types of waste generally accepted at the site included: oil recycling wastes, acids, caustics, lead, cyanide, arsenic, pesticides, PCBs, and other substances. The Record of Decision (“ROD”) describes in detail other types of wastes accepted at the site, along with the hazardous contaminants present at the site. Id. at 3.2. B. Enforcement History In 1978, the State of Oklahoma filed complaints against the facility for suspected lead poisoning of the air around the site. In September 1979, the OSDH began proceedings to revoke the facility permit as a result of Mr. Hardage’s use of unpermitted pits, his failure to seal permeable lenses in the pits, his improper closure of pits, his failure to retain runoff, and his improper storage of wastes at the site. During 1979, preliminary Environmental Protection Agency (“EPA”) investigations and inspections of the site indicated poor waste management practices posing threats to public health and welfare and the environment. In September 1980, the United States Department of Justice (“DOJ”) filed suit in United States v. Hardage on behalf of the EPA against Mr. Hardage, the site owner. The complaint alleged violations of section 7003 of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6973, and sought injunctive relief for proper cleanup and closure of the site. Following the passage of CERCLA, the United States amended its complaint in June 1982 to add claims for injunctive relief under section 106 of CERCLA, 42 U.S.C. § 9606, and for cost recovery under section 107, 42 U.S.C. § 9607. The Court bifurcated the trial in Hard-age I to consider Mr. Hardage’s liability first, and then to determine the proper remedy and costs incurred or to be incurred in any cleanup. On December 13, 1982, United States District Judge Lee R. West entered his findings of fact and conclusions of law in Hardage I. The Court found contamination of soil and groundwater as well as releases of contaminants into the air. The Court concluded that the Hardage Site was dangerous and found Mr. Hardage individually liable under section 7003 of RCRA and section 106 of CERCLA. However, because the remedial phase of the trial remained, the Court entered no judgment on the injunctive claims. United States v. Hardage, 18 Env’t Rep. Cas. (BNA) 1687, 1696 (W.D.Okla.1982). On August 19, 1983, the Court entered a partial judgment under section 107 of CERCLA against Mr. Hardage for $211,-795, which represented the United States’ response costs incurred through December 1982. The United States thereafter sought to identify Mr. Hardage’s assets and to obtain payment under the partial judgment. However, Mr. Hardage filed for bankruptcy on January 28, 1985, in the Bankruptcy Court for the Western District of Oklahoma, and received a discharge in bankruptcy on June 24, 1985. After the Court’s liability ruling in Hard-age /, the EPA continued to study the Hardage Site through investigations and administrative review. The EPA prepared a feasibility study to evaluate alternative remedial actions to clean up the Hardage Site from technical, environmental, and cost-effective perspectives. The EPA conducted studies of the Hardage Site in 1982, 1983, and 1984. The studies concluded that substantial work would be necessary to clean up the Hardage Site. In addition, the United States sought to identify other parties responsible for the contamination, in light of Mr. Hardage’s financial difficulties. As the EPA compiled available records from site operations, numerous Potentially Responsible Parties (“PRPs”) were identified. In December 1984 the EPA notified numerous companies, pursuant to section 104 of CERCLA, 42 U.S.C. § 9604, of their status ás PRPs pursuant to section 107 of CERCLA, 42 U.S.C. § 9607. Following Mr. Hardage’s discharge in bankruptcy, the United States requested, and the Court on July 18, 1985, issued, an order administratively terminating Hard-age I. The administrative closing was ordered without prejudice to the rights of the parties to reopen the proceedings by April 1, 1986, “for good cause shown, for entry of any stipulation or order, or for any other purpose required to obtain a final determination of the litigation.” On March 27, 1986, the United States moved to reopen the proceedings and to amend its complaint in Hardage I. The United States sought to add as party defendants various generators and transporters of the hazardous substances located at the Hardage Site. The Court denied the United States’ motion and dismissed the case on April 1, 1986. The dismissal was without prejudice to the United States’ rights to collect the earlier judgment against Mr. Hardage, or to join Mr. Hardage in any subsequent action, other than a money judgment, deemed “necessary to allow EPA or its designees to remediate or respond to conditions at the Site or take actions necessary to protect the public health, welfare or the environment.” On June 25, 1986, the United States filed the instant action, United States v. Hard-age, against 32 generators and three transporters, each of whom allegedly shipped between 100,000 and 1.7 million gallons of hazardous wastes to the site. The United States also sued Mr. Hardage for the limited purposes specified in the Court’s earlier dismissal. As in Hardage I, the complaint in Hardage II sought injunc-tive relief under section 7003 of RCRA and section 106(a) of CERCLA to require the defendants to clean up the site, and to recover costs incurred by the United States under section 107 of CERCLA. Most of the original defendants in Hard-age II organized themselves as the HSC defendants. The HSC’s answer in Hard-age II asserted numerous affirmative defenses and counterclaims against the United States. The HSC defendants in turn brought a third-party complaint against approximately 180 additional third parties for contribution, and to obtain reimbursement of the HSC’s costs expended in taking response and remedial actions at the Hard-age Site. C. Bifurcation of Case In a Case Management Order issued on March 26, 1987, the Court bifurcated the case into two phases, with the Liability Phase to be tried prior to the Remedy Phase. Case Management Order at 7. The allocation of the ultimate cost of any court-ordered cleanup would follow later. Most of the defendants, however, stipulated to liability under sections 106 and 107 of CERCLA. As a result, the Court, in entering judgment as to the HSC defendants’ liability on November 10, 1988, amended its Case Management Order to provide for the Remedy Phase to be tried as Phase I. Judgment and Order (Nov. 10, 1988) (filing No. 1553). The Court’s judgment also delineated the scope of the Phase I trial. The trial was to include “issues of appropriate response-remedial measures” for the Hardage Site, “the entitlement to and amount of response costs, if any, and the extent, if any, of [the United States’] liability” pursuant to the defendants’ counterclaims and affirmative defenses. Id. at 3. The Court indicated that Phase II of the trial would determine whether defendants, other than the HSC, were liable under sections 106 and 107 of CERCLA, 42 U.S.C. §§ 9606 and 9607. The judgment also indicated that any trial of cross-claims or third-party claims for contribution would be separate from the United States’ action and would not commence until Phases I and II were completed. D. Alternate CERCLA Cleanup Provisions The CERCLA provides the United States with three alternate methods of providing for the cleanup of hazardous waste sites. Section 104(a) permits the government to use Superfund monies to clean up sites, and then to seek recovery of the response costs from responsible parties under section 107(a). Section 106 provides two other methods for site cleanups when the EPA determines that the site conditions “may [pose] an imminent and substantial endangerment to the public health or welfare or the environment.” 42 U.S.C. § 9606(a) (1982). Section 106(a) permits the EPA either (1) to require the Attorney General “to secure such relief as-may be necessary to abate such danger or threat” by filing a civil action in federal district court seeking an injunction to compel responsible parties to perform such relief, or (2) to issue administrative orders “as may be necessary to protect public health and welfare and the environment.” Id. The EPA studied and investigated the Hardage Site and incurred response costs in the process. However, the EPA did not clean up the site itself under section 104(a) of CERCLA. Instead, the United States pursued injunctive relief, in Hardage I against Mr. Hardage and in this case against the generators and transporters of hazardous substances, to require the defendants to clean up the Hardage Site. 42 U.S.C. § 9606 (1982 & Supp. V 1987). This distinction is significant, because the scope of the remedy trial conducted in December 1989 was determined directly by the EPA’s pursuit of injunctive relief and by earlier rulings of this Court concerning the scope of review of the EPA’s selection of response actions. E. Scope of Review of the EPA’s Remedy Selection Throughout this proceeding, the United States has advocated that the scope of judicial review of the EPA’s remedy selection for the Hardage Site should be restricted to review of the administrative record on an arbitrary and capricious standard. However, on three separate occasions, the Court ruled that the scope of review would be de novo review of any remedy suggested by the EPA. The record review issue first arose in the context of the United States’ November 17, 1986, motion for protective order, which sought to limit the scope of deposition discovery by defendants of two contractors employed by the EPA to aid in developing a remedy. Judge West, on December 11, 1986, denied the motion for protective order. United States v. Hardage, 25 Env’t Rep.Cas. (BNA) 1343, 1986 WL 647 (W.D. Okla.1986). The Court emphasized that the administrative record had not yet been filed. Id. at 1344. The Court found that the SARA record review provisions were not applicable to the United States’ claim for injunctive relief under section 7003 of RCRA. Id. at 1344-45. In addition, the Court held that restrictions on judicial review did not apply to injunctive actions generally. Id. at 1345. The Court also concluded that the provisions of the Administrative Procedure Act were inapplicable. Id. Judge West ruled that section 106 injunctive claims “must be resolved in traditional trials by federal district courts after full discovery.” Id. The Court further concluded that the “defendants are entitled to de novo review of any suggested remedy by EPA at the Hardage site.” Id. On April 9, 1987, the Court denied the United States’ motion for reconsideration. United States v. Hardage, 663 F.Supp. 1280, 26 Env’t Rep.Cas. (BNA) 1053 (W.D. Okla.1987). The Court ruled, in addition to its prior-stated rationale, that SARA record review provisions could not be applied retroactively to actions filed before the passage of SARA, and that a restricted judicial review of the EPA’s remedial decision raised due process concerns. Id. 663 F.Supp. 1280, 26 Env’t Rep.Cas. (BNA) at 1055, 1059-61. The Court also distinguished injunctive actions brought in federal district court pursuant to section 106 of CERCLA from those brought administratively under section 106 for injunctive relief, and from actions for cost recovery under section 107 in instances in which the EPA funds site cleanups. Id. 663 F.Supp. 1280, 26 Env’t Rep.Cas. (BNA) at 1056. Once it was compiled, the United States certified to this Court on March 15, 1988, the administrative record supporting the EPA’s November 14, 1986, ROD. The United States then moved for the Court to restrict judicial review of the EPA’s remedial decision to the administrative record. On March 15, 1988, the United States also moved to dismiss its count based on section 7003 of RCRA. On July 14, 1988, this Court granted dismissal of the RCRA count. However, in a minute order dated September 9, 1988, the Court denied the United States’ motion for record review, citing the Court’s prior decisions on the motion for a protective order, dated December 11, 1986, and April 9, 1987. The Court also found as a matter of law that section 106 claims “must be resolved in traditional trials by federal district courts after full discovery, and that retroactive application of Section 113(j) of SARA is improper.” Minute Order (Sept. 9, 1988) (filing No. 1435). On September 9, 1988, the Court issued an accompanying memorandum decision stating that reversal of the Court’s earlier rulings concerning the scope of review was not warranted by the United States’ withdrawal of the claim based on section 7003 of RCRA or by the United States’ filing of the administrative record in March of 1988. Order on Motion to Restrict Review (Sept. 9, 1988) (filing No. 1434). Accordingly, the Remedy Phase proceeded to trial with this Court conducting a de novo review of the United States’ proposed remedy for the Hardage Site. However, under any standard of review, the Court’s decision on the remedy would have been the same. F. Special Master Early in this litigation, the Court recognized that the complexity of the issues, the number of parties, and the need to expedite matters to ensure protection of the public welfare might require the appointment of a special master under the provisions of Rule 53 of the Federal Rules of Civil Procedure. Toward that end, at a status conference on September 3, 1986, the Court directed the parties to submit a list of the names of 10 persons they believed would be qualified to serve as a special master. On October 1, 1986, the parties filed their lists of suggested candidates for special master. In addition, the United States supplemented its submission with the policy of the Attorney General of the United States on the use of special masters. The United States opposed the use of a special master as a technical advisor to the Court, but agreed a master might help resolve discovery disputes and could assist with the settlement process. After interviewing candidates for the position of special master, on February 25, 1987, the Court issued an order citing the following reasons for appointing a special master: (1) The case would require urgent resolution due to a threat to the public welfare. (2) Analysis of technical and scientific data would be required to determine complex issues of liability and apportionment. (3) Issues would be complicated by the number of parties and the commingling of the waste. (4) The vast amount of evidence necessary to litigate this case would result in extensive discovery which would require almost constant supervision. In the order, the Court appointed Alexander H. Danzberger as a special master for the Hardage case. The order delineated the master’s duties and authority. Order of Reference to Special Master at 12-13. In addition, the Court established a Master’s Reimbursement Fund of $70,000 to meet the expenses of the master during his term of service to the Court. During his three years as special master, Mr. Danzberger: (1) Conducted formal hearings on the record at the Court’s direction concerning the proposed Case Management Order and assisted in a hearing on a temporary restraining order on drilling at the site. (2) Served as hearing officer on pretrial matters. (3) Provided negotiation assistance to facilitate agreement on the Consent Decree for HSC’s performance of the Second Operable Unit Remedial Investigation/Feasibility Study — Management of Migration. (4) Recommended settlement strategies in magistrate’s hearings. (5) Facilitated discussion between the parties on site characterization issues, on interpretation of scientific data, and on the extensiveness of remedy requirements. (6) Provided periodic reports to the Court regarding litigation progress. The Court publicly expresses its appreciation of Mr. Danzberger’s service as special master. His efforts have facilitated open discussion between the parties, have aided in narrowing technical issues, and have streamlined the efficiency of this litigation. Because of the scope of review of the Remedy Phase, Mr. Danzberger played no role in that trial or in the preparation of this Order. VI. WITNESSES CALLED BY THE PARTIES The Court began receiving testimony in this case on November 27, 1989. The parties called the following witnesses: A. Witnesses Called by the Government and Consent Decree Parties Witness Name Employer Business, Profession or Occupation Date of Testimony 1. Kirk W. Brown Texas A & M Univer- Professor of soil and crop sciences; sity soil physicist November 27, December l, 1989 2. Marc A. Jewett CH2M Hill, Inc. Senior hydrogeologist and project manager November 27, 1989 3. Joseph P. Danko CH2M Hill, Inc. Process engineer/project manager; chemical engineer in the industrial processes and hazardous waste division November 27, 1989 4. Harold W. Bentley University of Ari- Associate adjunct professor; hydro-zona geochemist November 27, 1989 5. Annette M. Shipp Clement Associates Vice president; toxicologist November 27-28, 1989 6. Murdock John Cullinane, Jr. United States Army Corps of Engineers Research civil engineer, Waterways Experiment Station, Vicksburg, Mississippi November 28, 1989 U.S. Pollution Control, Inc. 7. Mary Ann Heaney Manager of health and safety; industrial hygienist November 28, 1989 8. Steven A. Beck U.S. Pollution trol, Inc. Con-Regional project manager for remedial services November 28, 1989 9. llene Whitehead Self-employed Co-owner of a family dairy farm located near the Hardage dump site November 29, 1989 10. Samuel Royce Smith Eastern Avenue Baptist Church, Moore, Oklahoma Associate pastor and Christian academy headmaster whose mother owns a farm near the Hardage Site November 29, 1989 11. Robert W. Davis CH2M Hill, Inc. Manager, Industrial Process Group; civil engineer November 29, 1989 12. Robert A. Griffin Illinois State Geological Survey; R.A. Griffin & Associates Principal Geochemist and Branch Chief of the Environmental Geology and Geochemistry Branch of the Illinois State Geological Survey; principal November 29, 1989 13. Gary R. Walter Hydro Geo Chem Registered geologist; hydrologist November 29, 1989 14. John B. Robertson HydroGeoLogic, Inc. Principal hydrogeologist and executive vice president November 29-30, 1989 15. Thomas A, Prick-ett Thomas A. Prickett President; water resources engineer- November 30, 1989 & Associates, Incor- ing consultant porated 16. Peter R. Jaffé Princeton University Assistant professor, Department of November 30, 1989 Civil Engineering and Operations Research 17. John M. Bruck Bruck, Hartman & Esposito, Inc. President and chairman; registered November 30, 1989 professional civil engineer; consultant in environmental management science and engineering 18. Allyn M. Davis United States Environmental Protection Agency Director, Hazardous Waste Manage- November 30, 1989 ment Division 19. Eugene Meyer Meyer Environmental Consultants, Inc. President; process chemist December 1, 1989 20. William Cooke United States Environmental Protection Agency Chief of the cost accounting and reporting section, Office of the Controller; certified public accountant December 1, 1989 21. Patrick A. McGeehin Rubino & McGeehin, Chartered Cofounder and partner; certified December 1, 1989 public accountant 22. Joseph Menchaca Ernst & Young Partner, management consulting di- December 4, 1989 vision; certified public accountant B. Witnesses Called by the Defendants Witness Name Employer Business, Profession Or Occupation Date of Testimony 1. Mark S. Coleman Oklahoma State Department of Health Deputy Commissioner for Environmental Health Services November 28, 1989 2. Robert H. Harris ENVIRON Corporation Principal and senior vice president; environmental engineer November 28, December 11, 1989 3. Richard C. Bost ERM-Southwest, Inc. Principal and project manager; environmental engineer and certified ground water professional hydro-geologist November 28, December 11, 1989 4. Gary R. Hecox IT Corporation Senior staff consultant in hydrology November 28, December 7, 1989 5. James K. Mitchell University of California, Berkeley Professor of civil engineering; independent geotechnical engineering consultant December 1, 1989 6. Stephen Hahn (by deposition) CH2M Hill, Inc. Regional manager; geotechnical and structural engineer December 4, 1989 7. J. Mark Schmittle ERM-Southwest, Inc. Senior hydrogeologist December 4, 1989 8. W. Scott Keys Private consultant Consultant in borehole geophysics applied to the solution of groundwater problems December 4, 1989 9. Stavros S. Papadopulos S.S. Papadopulos & Associates, Inc. President; registered professional engineer December 4, 1989 10. Steven P. Larson S.S. Papadopulos & Associates, Inc. Vice president; groundwater hydrologist December 6, 1989 11. George E. Hoag University of Connecticut; Vapex Environmental Technologies, Inc. Director of the Environmental Research Institute and associate professor of civil engineering; director and founder of Vapex December 6, 1989 12. R. Leonard Allen IT Corporation Senior project director, Landfill Engineering Group; registered civil en-December 6, 1989 gineer; registered geotechnical engineer 13. Richard A. Brown Groundwater Tech- Director of Chemical Technology December 7, 1989 nology, Inc. 14. Thomas A. Coopers & Lybrand Senior audit partner; certified pub- December 11, 1989 Matunas lie accountant 15. Benjamin Costello, Applied Hydrology Principal and president; hydrologist December 11, 1989 III Associates, Inc. 16. John A. Cherry University of Water- Professor of hydrogeology; self-em- December 12, 1989 loo, Ontario ployed consulting hydrogeologist C. Rebuttal Witnesses Called by the Government Witness Name Employer Business, Profession or Occupation Date of Testimony 1. Benjamin Burrell (by affidavit) United States Department of Justice Director of the Facilities and Administrative Services Staff, Justice Management Division December 12, 1989 2. Thaddeus L. Juszczak, Jr. (by affidavit) United States Environmental Protection Agency Director of the Resource Management Staff, Office of Solid Waste and Emergency Response December 12, 1989 3. Manfred van der Walde General Services Administration Director, Financial Management Division December 12, 1989 4. Harold W. Bentley University of Arizona Associate adjunct professor; hydro-geochemist December 12, 1989 5. Jere A. Strickland Chen-Northern Civil engineer December 12, 1989 6. Melvin L. Ritter United States Environmental Protection Agency Organic analytical chemist December 12, 1989 D. Sur-Rebuttal Witnesses Called by the Defendants Business, Profession Date of Witness Name Employer or Occupation Testimony 1. Steven P. Larson S.S. Papadopulos & Vice president; groundwater hydrol- December 13, 1989 Associates, Inc. ogist VII. FLAWS IN THE GOVERNMENT’S PROPOSED REMEDY A. Overview 1. The primary basis for the Court’s rejection of the government’s proposed remedy and its selection of the HSC remedy is fairly straightforward. The heart and soul of the government’s proposed remedy is excavation. While the Court was impressed with a number of the government’s soil vapor extraction witnesses, the Court was not persuaded at all by the few witnesses called by the government and the Consent Decree parties who testified in support of the appropriateness, feasibility, and safety of excavation. Other reasons for the Court’s remedy preference include the State of Oklahoma’s opposition to the government’s excavation proposal, the lack of due consideration given to the views of state authorities, the ambiguity of the excavation proposals presented in the government’s case, the unreliability of the government’s estimates concerning the number of intact drums in the main pit and barrel mound areas, the vacillating nature of the government’s proposed remedy, and the observations found in government documents concerning excavation and containment remedies at the Hardage Site. There are also other flaws in the government’s remedy that are discussed more fully below. 2. The Court believes the public health, safety, and welfare and the environment are best served by the modified HSC remedy that will be ordered by the Court. The Court thus finds that the government has failed to establish the excavation aspect of its proposed remedy by a preponderance of the evidence. The Court also finds that excavation is similarly inappropriate for purposes of the Consent Decree. 3. While the Court considered studying the possibility of utilizing soil vapor extraction in connection with the HSC remedy, a review of all of counsels’ closing arguments and final comments to the Court, as well as certain evidentiary factors identified by Dr. Richard Brown on December 7, 1989, and testimony by other witnesses cited below, persuaded the Court that it should not attempt a hybrid remedy or include soil vapor extraction as part of the remedy ordered for the Hardage Site. Accordingly, there will be no soil vapor extraction component in the remedy ordered by the Court. B. Vacillating Nature of the Government’s Remedy 1. The government’s proposed remedy changed so many times during the course of this litigation, and in such drastic measures, that the Court lost confidence in the deliberative process underlying the government’s final proposal. The government’s final proposed remedy came so late in the litigation that the Court has difficulty believing that it was carefully considered. 2. Despite years of preparation, partial excavation combined with soil vapor extraction was not announced as a part of the EPA’s trial remedy until October 1989. GE 2 sec. 3.2.4, at 3-36. 3. The EPA’s ROD that contained the government’s selected remedy was not filed until November 22, 1989. This was the Wednesday before the Thanksgiving holiday. The trial of this case began on November 24,1989, at 7:30 a.m., the Friday after the Thanksgiving holiday. Allyn Davis, the EPA’s director of hazardous waste management for Region VI, signed the EPA’s ROD two hours after giving his deposition on November 24. It was not provided to defense counsel until the eve of the trial. The ROD contains boxes and boxes of materials. V at 1160-63. 4. The vacillating nature of the government’s proposed excavation remedy is demonstrated by comparing the deposition testimony of the EPA hazardous waste director, Mr. Davis, on November 22, 1989, with his trial testimony on November 30, 1989. V at 1162-67; VI at 1191-96. Also, the earlier EPA proposals involved excavating more than the barrel mound and main pit. V at 1125, 1130, 1134. The earlier EPA proposals advanced a “pin cushion” theory, under which the source areas would be lanced and drained. This proposal was abandoned prior to trial. IV at 873-74; V at 1135-36. Unfortunately, it is extremely difficult for the Court to evaluate a proposed excavation plan until the government has decided on an excavation proposal. V at 1117. Various government witnesses advanced more than three excavation proposals. V at 1103-04. 5. The government’s risk assessment was based on an approach, suggested in the government’s remedy design report, involving the extraction of liquids through wells prior to excavation; but that method was not advanced as part of the government’s trial remedy. GE 2 sec. 3.2.4, at 3-36; III at 450. 6. On the morning of December 1, 1989, upon questioning by the Court, defense counsel pointed out the different inconsistencies between Mr. Davis’ testimony, the EPA’s ROD, and the government’s proposed remedy. Government counsel acknowledged that there was an “error in the draftsmanship” of the ROD in that the ROD suggested vertical extraction wells in all three source areas, as well as pooled liquids in all three source areas, concepts clearly inconsistent with the government’s trial remedy. VI at 1191-96; V at 1162-67. 7.The government’s changing remedies also adversely affected its evidentiary presentation at trial. One conceptual difficulty with a government expert’s soil vapor excavation feasibility model was that the model was prepared when the EPA’s lancing remedy was under consideration. This soil vapor extraction model, which was based upon a lancing theory, was not changed after the EPA’s excavation remedy displaced the lancing remedy. IV at 873-74; XII at 2359-60. See IV at 801. C. The Excavation Component of the Government’s Remedy 1. In addition to the remedy components suggested by the HSC, the remedy for the Hardage Site proposed by the EPA includes partial excavation of materials from the barrel mound and main pit, and soil vapor excavation in the barrel mound, main pit, and sludge mound. GE 2 at 2-1 to -4. 2. Excavation to remove buried hazardous wastes has been successfully implemented as a remedial measure at various hazardous waste sites around the country. 3. Excavation of buried hazardous wastes, including drums, is a recognized method of remediating hazardous waste sites. R. Davis R.Aff. at 3; V at 1098. 4. It is estimated that approximately 18,000 drums are buried in the barrel mound and the main pit. Supplemental Joint Statement of Uncontested Facts para. 81. 5. At the outset of the trial, the Court was logically and conceptually attracted to the government’s excavation remedy. Although countered by defense experts, three impressive government witnesses (Dr. Kirk W. Brown, Thomas Prickett, and John Robertson) testified that the contamination was spreading at the Hardage Site and that excavation would remove the bulk of the waste from the source areas before the contamination could spread further. None of these three witnesses, however, were presented to the Court as excavation experts. Indeed, had the government followed up these conceptual presentations with credible evidence concerning the feasibility, safety, and appropriateness of excavation at the Hardage Site, a different result might have occurred. It was in the practical aspects of excavation at the Hard-age Site that the government’s case fell apart. 6. The government called two witnesses to testify to the practical aspects of excavating the Hardage Site, Robert Davis and John Brack. Also, a Consent Decree party, United States Pollution Control, Inc. (“USPCI”), called Steve Beck to testify on the same point. By agreement of all parties, Mr. Beck’s testimony was to be considered by the Court for trial purposes as well as for the Consent Decree. The testimony of these witnesses totally failed to convince the Court that excavation was an appropriate remedy for the Hardage Site. In fact, this testimony convinced the Court of precisely the opposite — that the government’s proposed excavation plan was totally inappropriate for the Hardage Site. 7. The three government witnesses who testified about the planned excavation at the Hardage Site each described a different approach. V at 1103-04; IV at 745-50; III at 541-46. 8. The failure of the government to present a detailed, consistent proposal for drum excavation, an ultrahazardous activity, raises serious questions about the ability of the EPA to implement excavation safely at the Hardage Site. V at 1117. 9. Photographs of site operations indicate that intact drums were disposed of in the barrel mound and in the main pit in a haphazard fashion. DE 30 tab D. A recent test excavation in the main pit indicates that some intact drums remain buried. DE 168. 10. The barrel mound and the west side of the main pit were constructed haphazardly, resulting in drums lying in disarray within voids and channels within and around them. Schmittle Decl. at D-21 to -22; DE 30 tab D. 11. Excavation is not an appropriate remedy for the Hardage Site because of the way the drums were deposited and dumped. DE 30 tab D. At other hazardous waste sites, drums or barrels are placed in specific locations in a specific array. The placement of drums at the Hardage Site, however, was random. Id. IV at 752-829. The OSDH opposes the EPA remedy primarily because of the proposed excavation. Coleman Decl. at B-5; III at 588-620. 12. The OSDH is the agency of the State of Oklahoma, which is responsible for regulating the management and disposal of its hazardous waste, that should ensure the protection of the public health and welfare and the environment. The OSDH is the designated Superfund agency within the state. See Okla.Stat. tit. 63, §§ 1-2001 to -2021 (1981 & Supp.1987). 13. Before its trial remedy report was issued, the EPA had no discussions directed toward obtaining the OSDH’s views on the proposed excavation remedy. Ill at 610-11. 14. The EPA had not sought the OSDH’s views prior to selecting the excavation and vault remedy announced in the EPA’s 1986 ROD. Coleman Decl. at B-3. 15. The OSDH vigorously opposed excavation of the barrel mound and main pit, believing that harmful vapors could be released from the site and that fires or explosions could occur. Coleman Decl. at B-5; III at 588, 590, 620. 16. Excavation is not an appropriate remedy because of the inaccurate nature of the government’s estimates of the number of drums in the main pit and the barrel mound, and the speculative nature of the assumptions regarding the number of drums deposited at the Hardage Site that have ruptured and leaked. IV at 752-833; III at 565-66; VI at 1246-49; V at 1162-70. 17. Excavation experience at other sites suggests that only a small portion, less than 10%, of the drums remain intact and full of liquid. Ill at 560-62. The government’s assumption that more than 12,000 of the estimated 18,000 barrels at the site are full to the brim is fatally flawed. IV at 755-56, 739-833; III at 565-66. 18. Given the manner in which drums were thrown into the Hardage Site, many drums cannot be removed mechanically and placed into overpack drums without workers physically handling the drums. Ill at 522-53, 583; V at 1124-25. This poses serious risks to the handlers. 19. Although many buried drums can be detected as excavation proceeds using subsurface instrumentation, this instrumentation does not describe the nature of a buried drum, the extent to which it has collapsed, and the extent to which the workers may be exposed to contaminants as it is recovered. 20. Certain estimates provided during the testimony of government witness Robert Davis on November 29, 1989, suggesting that there are 660,000 gallons of drummed liquids, are substantially inflated. The evidence, to the contrary, suggests that most of the liquids are in the “known pooled liquids” category. IV at 739-833. . 21. A critical issue in this case is the number of buried drums at the Hardage Site that remain intact and that have not leaked or ruptured. Given the fact that the evidence strongly suggests that most such drums have ruptured or leaked in some fashion, the marginal utility of excavation as a remedy declines. The evidence suggests that most of the leaked materials can be recovered through the pumping of known pooled liquids. Both the government and the HSC remedies call for such pumping. The legitimate safety concerns with respect to excavation at the Hardage Site, coupled with the marginal utility of excavation given the evidence regarding the number of ruptured drums, persuades the Court that excavation is not appropriate. 22. Contrary to what the EPA representatives told two citizen witnesses, excavation and soil vapor extraction will not remove 90% to 99% of the hazardous waste within 10 to 20 years. IV at 708-32. Groundwater and soil contamination problems will remain at the site forever. DE 175 at 3. Moreover, the Hardage Site can never be returned to its prewaste disposal condition under any remedy. V at 1174. The EPA simply supplied these citizens with copies of its experts’ affidavits and persuaded them that the EPA remedy was the best remedy for the citizens living near the Hardage Site. Critical information was not supplied to these citizen witnesses. As a result the Court has placed little, if any, weight on this testimony offered in support of the government’s excavation remedy. 23. It is likely that very few of the drums remaining at the Hardage Site contain liquids. Schmittle Deck at D-21 to -22; DE 44 at 1, 7, table 1; DE 21 at 3-26, 4-1 to 4-2; DE 30 tab D. In another excavation effort, less than 500 drums were found intact in a 15,000 drum removal effort at a hazardous waste site. Ill at 560-62. 24. The review team leader for the EPA contractor responsible for preparing the 1986 Feasibility Study questioned the propriety of spending millions of dollars to remove the “source” of waste at the Hard-age Site, when the groundwater and soil contamination problems could never be eliminated. DE 175 at 3. 25. This review team leader of the EPA’s draft feasibility study, Steven Hahn, a geotechnical engineer who worked on hazardous waste sites, felt that a “fatal flaw” in the feasibility study was that it did “not carry at least one containment alternative through detailed evaluation.” DE 175 at 3. Mr. Hahn believed a viable containment alternative existed. He further noted that all of the excavation alternatives were “terribly expensive” and questioned the justification “for spending so much money on source removal, considering that extensive groundwater/soil contamination problems will remain at the site forever.” Id. at 1, 3. This document was offered into evidence by the HSC, and was received without objection. IV at 818-34. 26. Mr. Hahn also pointed out the following with respect to the 18,000 drums “assumed” to be at the Hardage Site: I strongly suspect that most of these are empty now, or will be punctured and/or crushed in the process of excavating the landfill. That was our experience at Berlin and Farro. DE 175 at 4. 27. Mr. Hannesschlager, a senior EPA enforcement official, in 1985 made a statement to the effect that the Hardage Site was not an imminent threat to the public. DE 174 at 3. In Mr. Davis’ opinion, he was qualified to render such a view. Mr. Davis is the hazardous waste director for the EPA’s Region VI. V at 1174-79. 28. Materials including DNAPL already have escaped from barrels outside the areas to be excavated, thus further reducing the viability of excavation. GE 19; IV at 830; V at 1163-64. 29. The Lyons Landfill site, upon which the government relied as an example of a successful drum excavation, involved fundamentally different conditions than those at the Hardage Site. Hecox R. Decl. at 3-4; III at 685-87. 30. The government’s excavation expert, Mr. Bruck, acknowledged that the government had not yet completed detailed plans for excavation. Excavation, according to Mr. Bruck would fall into one of three approaches. He could not tell the Court which approach should be used. V at 1094-1140. 31. Soil removed from the excavation site would have to be moved, perhaps more than once. R. Davis Rebuttal Aff. at 3-4; V at 1104-05. 32. Construction of the EPA remedy would require workers to spend significantly more person-hours in Level A and Level B protective equipment. Because this equipment severely restricts a worker’s mobility and leads to the buildup of heat within the equipment, implementation of the EPA remedy would increase the risk to workers of heat stress and heat stroke, particularly in the hot summer months. Harris Deck at C-18 to -23; III at 641-43; DE 141; V at 1112-14. 33. Excavating and handling buried drums containing unknown and potentially ignitable, flammable, or reactive chemicals is an ultrahazardous activity. Harris Supp. R.Decl. at 2-3. 34. The testing of intact drums containing unknown substances is an ultrahazardous activity that threatens workers with risks of fire, explosion, and chemical reactions as drums are opened to sample their contents. Harris Supp.R.Decl. at 3. 35. Workers cannot be completely protected from the risk of injury or death if an explosion occurs during excavation. V at 1138; VI at 1236. 36. Although government witnesses assured the Court that measures would be taken to avoid subjecting workers to heat stress during the excavation, including training and scheduling work during cooler periods of the day or of the year, one excavation proposal envisioned workers in protective gear working in summer afternoons. GE 2 at 3-38; III at 523; Bruck Aff. at 4; V at 1105, 1107. 37. The government’s excavation witness, Mr. Bruck, acknowledged that he had little on-site experience. His work as a program manager involved minimal on-site experience. He testified that two excavation shifts could be utilized, one in the early morning and one in the afternoon. The workers would wear level B protection. Level B protection is high-level protection, involving suits, gloves, boots, respirators, etc. Level B protection poses heat stress problems for workers that can be alleviated by multiple work shifts. The notion, however, that workers could perform such work in Oklahoma in summer afternoon temperatures is at odds with the reality of the state’s summer weather. Excavation difficulties would be compounded because Mr. Bruck expected to uncover the type of drum arrays depicted in Defense Exhibit No. 30, tab D. V at 1105-40. 38. During the summer and winter months it may not be practicable, or even possible, to work in Level B protection on many days or for extended periods of time. Harris Deck at C-23; V at 1104, 1112. 39. In order to remove the drums during excavation, workers would necessarily have to handle drums physically and would work in close proximity to waste liquids and excavated drums. II at 206-07; V at 1129-30; DE 30 tab D; DE 44. 40. Because of the way the barrels were left at the Hardage Site (DE 30 tab D), the excavation would require some hand digging. The EPA proposes to use mechanized excavation to the maximum extent possible. V at 1093-1140. 41. Level A protection involves a fully contained, rubberized suit with a pressurized breathing apparatus. Level A gear provides more protection for the worker. The EPA’s proposed remedy would require that more than 50% of the excavation work be performed in Level A gear. The government’s excavation witness, Mr. Bruck, was not aware that the remedy report of the EPA and the Consent Decree require 50% of the excavation work to be performed in Level A gear. V at 1122. 42. The government’s excavation plans are more properly characterized as being at a general philosophical stage rather than at a specific stage. V at 1136; III at 567. The workers performing the excavation, however, realistically would be exposed to a serious risk. Y at 1106-41. This Court is not prepared to risk the safety and lives of Oklahoma workers on such tenuous plans and proposals. 43. The government’s remedy design document does not adequately describe the manner or method of excavation, or the actual procedures contemplated to address the risks of excavation. GE 2 sec. 3.2.4., at 3-36; V at 1106-41. 44. The drum excavation proposed by the EPA envisioned that the drums would be removed intact in order to avoid the release of liquids to the subsurface. II at 264. This plan is not supported by the likely condition of the remaining drums. 45. Drums encountered in the barrel mound would be in a deteriorated condition. Excavation could further crush or puncture the drums, causing substances in them to leak and react with potentially incompatible chemicals present at the site. Schmittle Deck at D-21 to -22; DE 30 tab D; DE 44; DE 179; Hecox III at 690; III at 588-89. 46. There were substantial discrepancies among the government witnesses regarding the amount of exposed surface area for the excavation working face, the plan of excavation, the disposition of soil, and the number of times soil would be moved, all of which adversely affected the Court’s ability to estimate the risks associated with excavation. GE 2 at 3-36 to -39; III at 544, 545, 442-46, 644-68; IV at 778-83. 47. Emission control measures would have to be implemented to prevent dust and vapor emissions during the excavation. These measures would include vapor suppressant foams, and might also include wetting agents, plastic sheeting, visqueen, clean soil, and other materials. R. Davis R.Aff. at 3-4; Bruck Aff. 7; GE 2 at 3-38; III at 543; V at 1101. The government’s nebulous plans regarding this critical and dangerous aspect of excavation do not justify inclusion of excavation as a remedy component for the Hardage Site. 48. Because wind gusts are likely during any excavation of the Hardage Site, the proposed use of a plastic covering to control vapor emissions from stored materials is unlikely to succeed. Bruck Memo (Oct. 5, 1988) (attached to Administrative Record, GE 234). 49. Excavation-based remedies selected by the EPA at various other sites, including the Petro Processors and Rocky Mountain Arsenal sites, have been delayed or reconsidered because of unacceptable vapor emissions. Harris Deck at C-7 to -8. 50. Excavation poses significant risks due to emissions. The dangerous short-term risk to workers is not outweighed by the alleged long-term benefits associated with excavation. The HSC risk expert, Mr. Harris, provided persuasive testimony to the Court regarding the dangers of excavation. Ill at 636-66. The Court found this testimony more persuasive than the testimony provided by the government’s risk assessment expert. II at 409. 51. The EPA remedy includes certain remedy components — excavation of the barrel mound, removal of liquids by vacuum truck, transportation of excavated wastes to a staging area, and construction, operation, and maintenance of the soil vapor excavation system — that create significant implementation risks in addition to the risks created by the remedy components common to the EPA and HSC remedies. Harris Deck at C-10 to -23; DE 140; III at 640, 643-44, 690-91. 52. Implementation of the government’s excavation plan will result in significant risks to local residents. Off-site cancer risks associated with the EPA remedy are understated; estimates of the off-site cancer risks associated with the HSC remedy are likely overstated. 53. Excavation will present a risk of fire, explosion, and physical injury from direct contact with hazardous wastes if incompatible wastes mix during the work. Harris Deck at C-10 to -15; DE 140; III at 640, 643-44, 690-91; VI at 1231, 1233.23. 54. Excavation of the barrel mound/main pit to remove drums and drummed wastes will cause off-site releases of exceedingly toxic substances, such as asbestos, that can contaminate soil and surface water near the site. Those substances can persist long after the remedy is constructed. Harris Deck at C-26, D-4. 55. The EPA failed to evaluate adequately the costs and risks associated with the handling, testing, storage, transportation, and incinerat