concurring in part and dissenting in part.
I agree that the district court did not err in finding that Larry Gurley had acted as more than a mere employee of GRC. The record demonstrates that Larry Gurley had extensive authority over the company’s daily operations and that he personally participated in and monitored the waste disposal process. I therefore concur in the majority’s conclusion that the district court did not err in imposing liability on Larry Gurley.
However, I do not believe that the CWA action brought by the EPA in 1983 prevented it from pursuing this CERCLA action against GRC. As the majority notes, the doctrine of res judicata precludes the relit-igation of a claim on grounds that were raised or could have been raised in the prior action. Ante at 1195. Because I do not believe that the CERCLA action could have been properly raised in the prior litigation, I respectfully dissent from this portion of the majority’s opinion.
The majority acknowledges that the EPA faced a statute of limitations problem in recouping expenditures from the 1978 and 1979 removal efforts at the pit, ante at 1196-97, but concludes that the EPA could have asserted a CERCLA claim when it filed the CWA action in December 1983 or while that case was pending. However, the results of the EPA’s feasibility study were not released until April 1986, three years after the CWA action was filed and six months after the entry of the district court’s first judgment against GRC.' In fact, the majority admits that “the scope of the cleanup was not known until April 1986.” Ante at 1196.
I agree with the EPA’s argument that a CERCLA remedial action filed in conjunction with the CWA litigation would have been premature. Thus, I would conclude the EPA was not precluded from bringing this action against GRC and that the district court did not err in imposing liability. In all other respects, I concur in the majority’s opinion.