665 F.Supp. 714 (1987)
Otis JENNER and Arlene Jenner, Plaintiffs,
v.
Eva SHEPHERD and Lawrence Shepherd, et al., Defendants.
No. NA 84-291-C.
United States District Court, S.D. Indiana, New Albany Division.
May 20, 1987.
*715 Cheryl A. Carpenter, Jeffersonville, Ind., for plaintiffs.
Phillip W. Shea, Jeffersonville, Ind., for defendants.

MEMORANDUM DECISION
NOLAND, District Judge.
The plaintiffs Otis and Arlene Jenner brought this action seeking declaratory relief and damages under the civil rights *716 statute 42 U.S.C. § 1983 alleging that the defendants Eva and Lawrence Shepherd, and their son Steve Shepherd (the "Shepherds") had deprived them of property without due process by detaining their personal property pursuant to the common law innkeepers lien codified at Ind.Code 32-8-27-2 and made applicable to mobile home owners by Ind.Code 13-1-7-33. The plaintiffs have alleged that the Shepherds' conduct violated the Indiana Constitution and have also advanced various state law causes of action. The plaintiffs seek a declaration from this Court that Ind.Code 32-8-27-2 and Ind.Code 13-1-7-33 are unconstitutional and ask for an award of compensatory and punitive damages from the Shepherds under 42 U.S.C. § 1983 in an amount in excess of $15,000, and attorney fees pursuant to 42 U.S.C. § 1988 in the amount of approximately $6,700. The defendants have filed a counterclaim seeking back rent and damages. In addition to the Shepherds, the plaintiffs originally brought this section 1983 action against Don Ennis, a Charlestown police officer and the City of Charlestown. Prior to the trial of this case, the plaintiffs settled their section 1983 claims with defendants Ennis and the City of Charlestown for the sum of $2,690.00. A release was given by the plaintiffs and these governmental defendants were dismissed from this action. Trial of this action against the Shepherds, the remaining defendants, was had on April 13, 1987. This Memorandum Decision is entered in accordance with Rule 52(a) of the Federal Rules of Civil Procedure, which allows findings of fact and conclusions of law to appear in a memorandum of decision filed by the court.

I.
The facts established by the evidence presented by the parties are as follows. At the times relevant to this action, Eva and Lawrence Shepherd owned and operated a mobile home park in Charlestown, Indiana. Their son Steve Shepherd performed the maintenance work at the park for his parents. On or about June 1, 1984, Eva Shepherd was contacted by Hoosier Valley, a private organization which assists needy families to find clothing, shelter and employment, which asked if she would rent a home in the park to a needy family. Eva Shepherd agreed, and the plaintiffs, Otis and Arlene Jenner and their teenage daughter and their son and his wife and child, moved into a small three bedroom mobile home that afternoon.
At the time the Jenners moved into the Shepherds' mobile home, Otis Jenner, a white male, was unemployed, having been laid off from his job with the Valley Line Company, a shipping or maritime company, four months before. He returned to the Jeffersonville, Indiana area believing that work would be available for him in the industry. Prior to his lay-off, Otis Jenner had worked steadily in the maritime industry since 1953 except for a period from 1979-1983 when he drove a cab in Las Vegas, Nevada.
Throughout the two and one-half months that the Jenners lived in the Shepherds' mobile home, they caused damage to the mobile home, created disturbances which required police intervention and failed to pay the $235 monthly rent pursuant to their agreement. Eva Shepherd testified[1] that she was called at home on a number of occasions because the Jenner teenagers would party in the mobile home park until two or three o'clock in the morning causing such a disturbance that the police would have to be called to quiet them down. She also testified that during this time she could see physical damage being done to the window frames of the mobile home. Eva Shepherd testified that during July, trouble arose between Arlene Jenner and her son and daughter-in-law which resulted in her son and his family moving out of the mobile home and in with some other residents in the park. Later that month the police removed her son's baby to the custody of the Clark County welfare department.
*717 The Jenners never paid rent for the month of June, 1984. The rent of $235 was to be paid in advance on the first day of each month. At the end of June, the Jenners' rent was paid by private charitable groups through an arrangement with Hoosier Valley. The Jenners did not pay the July rent until July 24th. At that time, Eva Shepherd talked to Otis Jenner about the problem of the late rent payments. Otis Jenner promised that he would be able to pay her on time because he was expecting to receive unemployment checks. He also told her that he was trying to sell his van and that he would pay the August rent from the proceeds. Eva Shepherd discovered that Otis Jenner sold his van to a neighbor in the park for $500 in cash; however, Otis Jenner did not pay the rent as he had promised. When Eva Shepherd asked him for the August rent on August 2nd or 3rd, he was not able to pay. Otis Jenner testified at trial that he had used the money from the sale of the van to pay rent on a mobile home in another park to provide a home for his son and his daughter-in-law. After the Jenners failed to pay the August rent, Eva informed the Jenners in writing that they would be evicted. Eva Shepherd testified that in response to the threatened eviction Otis Jenner begged her not to evict them because a court proceeding was being held on August 13, 1984 to determine whether the baby would be returned to the Jenners. Otis Jenner told her that the family needed to stay until August 13 because if they did not have an address they would not get the baby back. Eva Shepherd agreed to let him stay until August 13 and he promised to move as soon as the hearing was over. Thereafter, from the 13th of August until the 18th of August, he would tell Eva Shepherd every day that the family would be out of the Shepherd mobile home the next morning.
Finally, on the morning of the 18th of August, Steve Shepherd went to the mobile home park to unlock the laundry facilities at 8:00 A.M. Eva Shepherd testified that Steve called her from the park and told her that the Jenners were not going to move that morning and that Otis Jenner was threatening him. Steve Shepherd also told her that he thought that they were going to have some problems. On her way to the park Eva Shepherd stopped by the Charlestown police department and talked to officer Don Ennis, telling him that she thought that there would be problems at the park because of the threats made by the Jenners. Officer Ennis offered to follow her to the park in case she had any problems.
When she got to the mobile home occupied by the Jenners, Otis Jenner told her that he was not going to move. Eva Shepherd testified that she had a copy of the innkeepers' rights which she showed to Otis Jenner. She told him that if he did not pay then he would have to move. Officer Ennis suggested that he read the innkeepers' rights; upon reading the paper that Eva Shepherd had, Otis Jenner told his wife that they had to go. The Jenners left the premises.
Steve Shepherd locked the front door of the mobile home with a padlock. On August 21, 1984 Eva packed the remainder of the Jenners' belongings and had them stored in an empty building. Upon inspection, Eva Shepherd discovered that the Jenners had done extensive damage to the mobile home and that the inside of the home was filthy. The curtains were gone and the rods had been broken. Cigarettes had been extinguished on the carpeting, the mattresses for the beds were dirty as though they had been used without sheets, and dried vomit had been left in the bathroom sink. Drawers built into the home had been pulled out of the walls and broken and the window frames had been torn out of the trailer. The cost of the repairs for damage done to the trailer was approximately $200.00 excluding the labor performed by Steve Shepherd and Eva Shepherd repairing and cleaning the home to prepare it for rental.
In approximately October of 1984 the Jenners contacted Eva Shepherd and offered to pay a pro rata rental for the August past-due rent in the amount of approximately $140.00 for the return of their property. Eva Shepherd requested the additional sum of approximately $250 to pay for the damages to the mobile home *718 and the costs for the rental of a truck to haul their belongings into storage before releasing their property.
There was conflicting testimony concerning whether the Jenners made repeated requests for the return of medication and forms needed to process Otis Jenner's unemployment compensation. The Court accepts the testimony of Eva Shepherd that she had no knowledge of any requests for such items. Eva Shepherd testified that the Jenners contacted them only several months after they left the premises on August 18th. She was not able to make a request for damages to the mobile home until that time because she had not heard from them prior to then. Approximately one year after the Jenners moved from the mobile home park, the Shepherds released the Jenners' possessions to them.
The complaint in this action was filed on December 12, 1984. Attached to the complaint as Exhibit A was a list of all personal property detained by the Shepherds and the value of the items. The total value of the Jenners' property was stated to be $1,616.00. At trial, a second list, purporting to show the replacement cost of the property which the Jenners left in the mobile home, was introduced into evidence. The total cost for the replacement of items was stated to be approximately $5,000.00. Otis Jenner testified that his wife had prepared the second list of property.[2] He admitted that he did not have personal knowledge of the cost of all the property on the list.

II.
The plaintiffs' complaint, which itself is not a model of clarity advances seven "claims" for relief. The first claim alleges that the defendants have violated 46 U.S.C. § 11110 which prohibits the attachment of a lien against a seaman's clothing; the second and third claims seek redress for a deprivation of the plaintiffs' procedural due process rights pursuant to 42 U.S.C. § 1983; the fourth claim alleges a deprivation of rights secured by the Indiana Constitution; the fifth claim asserts that the defendants made improper use of the Indiana innkeepers' lien to evict the plaintiffs; the sixth claim alleges that the Indiana innkeepers' lien is unconstitutional because it deprives the plaintiffs of due process rights guaranteed by the Fourteenth Amendment;[3] and the seventh claim advances theories of state tort law. For the reasons set forth fully below, the Court finds that the plaintiffs have failed to meet their burden of proving that the defendants violated any of the plaintiffs' federal constitutional rights or acted contrary to federal law as asserted by the first, second, third and sixth claims of the plaintiffs' complaint. In the interest of comity and federalism, the Court therefore abstains from considering the state law claims asserted by the fourth, fifth and seventh claims of the plaintiffs' complaint and the defendants' counterclaim.

a. The First, Second, Third and Sixth Claims

Section 11110 of Title 46 provides that:
The clothing of a seaman is exempt from attachments and liens. A person detaining a seaman's clothing shall be fined not more than $500, imprisoned for not more than six months, or both.
The plaintiffs claim that the defendants have violated this section by detaining Otis Jenner's clothing. The plaintiffs however have failed to meet their burden of establishing that Otis Jenner is a seaman within the meaning of the statute. Section 10101 of Title 46 defines "seaman" as "... an individual ... engaged or employed in any *719 capacity on board a vessel." The evidence presented at trial indicates that Otis Jenner was neither employed at the time he and his family moved into the Shepherds' mobile home park nor when he and his family left the Shepherds' mobile home park. He testified that during the month of July he was able to work for two weeks; however, it is not clear from his testimony whether he was employed as a seaman or in some other capacity in the shipping industry. There are a number of jobs in shipping and upon navigable waters which are not encompassed in the term seaman. Carter v. Helena Marine Service, Inc., 251 Ark. 876, 475 S.W.2d 528, 529 (1972). See, e.g., Blackton v. Gordon, 303 U.S. 91, 58 S.Ct. 417, 82 L.Ed. 683 (1938) (the master of a vessel is not a seaman within the terms of 46 U.S.C. § 601, now 46 U.S.C. § 11109). The evidence establishes that at the time the Shepherds detained the Jenners' personal property, Otis Jenner was not employed or engaged as a seaman or in any other capacity. Otis Jenner has failed to prove that he is a seaman entitled to the protection of 46 U.S.C. § 11110.
The second and third claims of the plaintiffs' complaint brought under 42 U.S.C. § 1983 challenge the Shepherds' actions and the detention of the plaintiffs' property as a deprivation of property without due process of law in violation of the Fourteenth Amendment. Section 1983 provides a remedy for persons who have been deprived of rights secured by the United States Constitution when that deprivation occurs under color of state law.[4] In order to succeed on their section 1983, the plaintiffs must prove both that the Shepherds violated the Fourteenth Amendment and that the Shepherds acted under color of state law.
The Court notes at the outset that this case came to trial in a rather unusual posture for a § 1983 action. Although originally brought against the City of Charlestown and Don Ennis, a Charlestown police officer, the plaintiffs settled their claims in full with these governmental defendants for the sum of $2,690.00 and dismissed the action against them. The plaintiffs now seek compensatory and punitive damages and attorney fees under the Civil Rights Act, 42 U.S.C. § 1983 and 42 U.S.C. § 1988 in excess of $20,000 from the Shepherds, the only remaining defendants. Because the plaintiffs have dismissed the action against the City of Charlestown and Officer Don Ennis, the Court is precluded from considering whether the actions of the dismissed governmental defendants effected an unconstitutional deprivation of the plaintiffs' property. The plaintiffs have effectively limited the Court to the consideration of whether the Shepherds, as private individuals, violated the plaintiffs' Fourteenth Amendment rights.
The Fourteenth Amendment provides in pertinent part that "... nor shall any State deprive any person of life, liberty or property without due process of law...." The Fourteenth Amendment limits only governmental action and does not restrict individual or private action. See Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883). The requirement of due process of law is directed at the several States and "can be violated only by conduct that may be fairly characterized as "state action". Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). Because the Fourteenth Amendment limits only governmental action, the threshold determination which the Court must make is whether the detention of the plaintiffs' personal property by the Shepherds, who acted under the authority of the Indiana innkeepers lien, Ind.Code 32-8-27-2 as applied to mobile homes, Ind.Code 13-1-7-33 constitutes state action.
*720 The Court's determination of whether state action in this case exists is governed by Anastasia v. Cosmopolitan National Bank, 527 F.2d 150 (7th Cir.1975)[5] which held that there was no state action where the innkeepers had detained the personal property of their guests or tenants pursuant to Illinois statutes which give hotelkeepers a lien upon the personal belongings of a guest to the extent of charges for the accommodations. Ill.Rev.Stat. ch. 82, § 57 and ch. 71, § 2. In Anastasia the plaintiffs were hotel residents who returned to their rooms to find that the innkeepers had either changed or plugged the locks on their doors so that they could not enter their rooms. The plaintiffs were informed that their belongings would not be released until all arrearages in rent had been paid. The plaintiffs brought an action under 42 U.S.C. § 1983 seeking damages and a declaration that the Illinois statutes were unconstitutional.
In holding that the actions of the hotelkeepers did not amount to state action, the Seventh Circuit examined both the "entwinement" theory of state action and the "public function" theory of state action.
Rejecting the entwinement theory, the Seventh Circuit noted that:
[T]he inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.
Anastasia, 527 F.2d at 154, quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974). The question then is "whether the state has significantly involved itself in the challenged conduct." Id., citing Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173, 92 S.Ct. 1965, 1971-72, 32 L.Ed.2d 627 (1972). The existence of the Illinois statutes which allowed hotelkeepers to exercise common law self-help remedies but which did not compel the actions of the hotelkeepers simply fell "short of the significant degree of encouragement or affirmative support necessary" to constitute state action. Anastasia, 527 F.2d at 156. See also Davis v. Richmond, 512 F.2d 201 (1st Cir. 1975).
The Indiana statutes which allow the Shepherds to detain the personal property of persons staying in their mobile home park are very similar to the Illinois statutes in Anastasia. Ind.Code 32-8-27-2 gives the innkeeper a lien on the property and allows him to detain such property until the charges are paid in full. Ind.Code 13-1-7-33 merely extends the common law innkeepers lien to mobile home park owners. The statutory expansion of the lien to include the mobile home park owners does not provide a basis for the existence of state action. Anastasia, 527 F.2d at 156; Davis, 512 F.2d at 203. Further, the statutes merely allow the mobile home park owners to exercise self-help remedies and do not compel the procedures the Shepherds used to detain the property of the Jenners. The existence of the Indiana statutes does not establish the significant state involvement necessary for the existence of state action.
Further, the plaintiffs might (but did not) argue that the presence of Officer Don Ennis and his actions during the final altercation between the Jenners and Shepherds provide the significant degree of state involvement necessary to establish state action. *721 The presence of Officer Ennis is simply insufficient under the circumstances of this case to find that state action exists. Mrs. Shepherd testified at trial that she enlisted the assistance of Officer Ennis solely because of the threats of violence made by the Jenners. During the short two-month residency of the Jenners, the police had been called to the Shepherds mobile home park on a number of occasions because of the Jenners' disorderly conduct. The Court accepts Mrs. Shepherd's testimony on this point as credible and believes that it was entirely reasonable for Mrs. Shepherd to seek protection from the Charlestown police.[6]
The public function theory of state action recognizes that when the state confers powers or functions traditionally reserved to the state on private individuals, the actions of the private individuals may be subject to constitutional limitations. See, Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1945). The Seventh Circuit rejected Hall v. Garson, 468 F.2d 845 (5th Cir.1972) which found state action to exist under this theory because the landlord was performing what was ordinarily a state function. The Seventh Circuit determined that while a sheriff is often the party to execute a lien, it is hardly a function traditionally and exclusively exercised by the state, but rather one that has been shared by the state and private persons. Anastasia, 527 F.2d at 158. This Court agrees with the Seventh Circuit and finds that there is no basis for concluding that there is state action under the public function theory.
Because the Court holds that there is no state action, the Court does not consider whether the Indiana innkeepers lien, Ind. Code 32-8-27-2, as applied to mobile homes, Ind.Code 13-1-7-33 would be unconstitutional under the Fourteenth Amendment if state action had been present.

b. The Fourth, Fifth and Seventh Claims

The plaintiffs' fourth claim is based upon the Indiana innkeepers lien, Ind.Code 32-8-27-2, as applied to mobile homes by Ind.Code 13-1-7-33 and alleges that the defendants deprived the plaintiffs of rights secured by Article I, Section 12 of the Indiana Constitution. The constitutionality of these statutes under the Indiana Constitution raises a question more properly decided in the first instance by the Indiana state courts and this Court respectfully abstains from consideration of this question.
As their fifth claim for relief the plaintiffs state that the defendants used the innkeepers lien, Ind.Code 32-8-27-2, as applied to mobile homes by Ind.Code 13-1-7-33 to "evict Plaintiffs and said use was improper use of the Statute as it deprives tenants of their rights to their leasehold without due process of law." Pl. Complaint at 9. This claim is based on the defendants' improper use of the Indiana innkeepers lien law to effect an eviction of the plaintiffs in contravention of state landlord tenant law. The plaintiffs' allegations state that the defendants were acting contrary to the state statute; the conduct of which the plaintiffs complain was in fact contrary to State policy or law. That the defendants, private citizens, invoked the statute and used it to effect a result not allowable by the statute itself can in no way be attributed to a state decision or a state rule. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 940, 102 S.Ct. 2744, 2755, 73 L.Ed.2d 482 (1982). The plaintiffs' fifth claim does not present an action under section 1983 but rather challenges only the private action of the Shepherds under Indiana law.
The plaintiffs' seventh claim alleges that the defendants committed the torts of conversion and trespass by the wrongful detention of the plaintiffs' property. The questions of whether the Shepherds acted wrongfully in evicting the plaintiffs or committed *722 the torts of conversion or trespass cannot be resolved without a determination of whether the statutes in question violate the Indiana Constitution. The consideration of the state tort claims in relation to the constitutionality of the Indiana innkeepers lien, Ind.Code 32-8-27-2, as applied to mobile homes by Ind.Code 13-1-7-33 under the Indiana Constitution is more properly made by the Indiana state courts and the plaintiffs must seek redress through the state judicial system. Similarly, the defendants' counterclaim for rent and damages must be considered in light of the constitutionality of the state statutes under the Indiana Constitution and the defendants must also look to the state courts for their remedy.
The Court's order to the parties in this action to repair to the state courts to seek redress for the state claims raised by them protects an important state interest. The very existence of the claims raised is directly determined by whether the Indiana innkeepers lien law, Ind.Code 32-8-27-2 as applied to mobile homes, Ind.Code 13-1-7-33, violates Article I, Section 12 of the Indiana Constitution. The State of Indiana has an interest in the interpretation and proper construction of its innkeeper lien and its application to mobile homes. The interests of comity and federalism require this Court to abstain from considering these questions. The Court further finds that the parties will not be unduly prejudiced by the Court's abstention in this matter as both parties devoted their energy to the federal constitutional and civil rights claims before this Court while providing little argument or authority as to the advancement of the state law claims. The state law causes of action contained in the fourth, fifth and seventh claims of the plaintiffs' complaint and the defendants' counterclaim are therefore dismissed without prejudice.
IT IS SO ORDERED.

JUDGMENT
This cause came before the Court for trial on April 13, 1987. The Court, having filed its Memorandum Decision and Order dismissing the fourth, fifth and seventh claims of the plaintiffs' complaint without prejudice herein, and being duly advised in the premises, hereby ENTERS JUDGMENT in favor of the defendants Eva Shepherd, Lawrence Shepherd and Steven Shepherd and against the plaintiffs Otis and Arlene Jenner on the first, second, third and sixth claims of the plaintiffs' complaint.
IT IS THEREFORE ORDERED, ADJUDGED and DECREED that the plaintiffs take nothing by way of the first, second, third, and sixth claims of the plaintiffs' complaint, that JUDGMENT BE ENTERED herein in favor of the defendants on the first, second, third and sixth claims of the plaintiffs' complaint and that costs be borne accordingly.
NOTES
[1]  Lawrence Shepherd was not able to attend the trial to testify because he is suffering from leukemia.
[2]  Arlene Jenner neither appeared nor testified at trial.
[3]  The plaintiffs also alleged a deprivation of Fifth Amendment guarantees to due process. However, the Fifth Amendment is only applicable to conduct attributable to the federal government, not to conduct attributable to the state or to state actors. The plaintiffs have not alleged that the federal government was in any way involved in this action. Therefore, this action is properly brought only under the Fourteenth Amendment which protects individuals from deprivations of property without due process of law by a state or by conduct fairly attributable to a state.
[4]  42 U.S.C. § 1983 provides:

Every person who, under color of any statute, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
[5]  The plaintiffs have cited numerous decisions to the Court which have, under various factual situations, held state innkeeper lien laws to be unconstitutional under the Fourteenth Amendment. See, e.g., Hall v. Garson, 468 F.2d 845 (5th Cir.1972); Adams v. Joseph F. Sanson Investment Co., 376 F.Supp. 61 (D.Nev.1974); Klim v. Jones, 315 F.Supp. 109 (N.D.Cal.1970). The Court will not attempt to distinguish each of the cases cited by the plaintiffs but rather notes that neither the plaintiffs nor the defendants have cited either Anastasia v. Cosmopolitan National Bank, 527 F.2d 150 (7th Cir.1975) or Davis v. Richmond, 512 F.2d 201 (1st Cir.1975) both of which held that no state action existed where innkeepers had detained the personal property of their guests pursuant to a state statutory lien law. As the Seventh Circuit noted in Anastasia, 527 F.2d at 157 n. 17, this issue is one on which there is a conflict among the circuits; however, this Court agrees with the reasoning of the Seventh Circuit in Anastasia and follows the precedent established in this Circuit. The plaintiffs have not persuaded the Court that a contrary rule should be established.
[6]  The Court stresses again that whether the actions of Officer Ennis and the Town of Charlestown constitute state action for the purposes of the 14th Amendment is not before this Court because the plaintiffs have dismissed these governmental defendants from this action.


823 F.2d 965
UNITED STATES of America, Plaintiff-Appellee,v.Franklin PURTHER, Defendant-Appellant.
No. 86-1636.
United States Court of Appeals,Sixth Circuit.
Argued May 8, 1987.Decided July 15, 1987.

Neil H. Fink (argued), Detroit, Mich., Michael J. Rex, for defendant-appellant.
F. William Soisson, Asst. U.S. Atty., Detroit, Mich., Patricia G. Blake, Asst. U.S. Atty.  (argued), for plaintiff-appellee.
Before LIVELY, Chief Judge;  ENGEL and KRUPANSKY, Circuit Judges.
LIVELY, Chief Judge.

1
The defendant-appellant was convicted of mail fraud and sentenced to serve a prison term.  In addition, the district court ordered him to make restitution to the individual victims of the mail fraud scheme in the amount of $731,209.  On appeal the defendant contends that the district court erroneously ordered restitution, claiming that the offenses for which he was convicted took place prior to the effective date of the Victim and Witness Protection Act of 1982 (the Act).  The restitution provisions of the Act were added to the sentencing chapter of Title 18 of the United States Code by section (5)(a) of Public Law 97-291, and are codified as 18 U.S.C. Secs. 3579 and 3580 (1982).  In general, these provisions permit a court, when sentencing a defendant found guilty of an offense under the federal criminal laws, to order the defendant to make restitution to any victim of the offense, in addition to or in lieu of any other penalty permitted by law.  18 U.S.C. Sec. 3579(a).

I.

2
Defendant was charged with designing and executing a scheme to defraud investors by inducing them to invest in a series of fictitious limited partnerships that were formed between July 1978 and July 1982.  The information to which defendant pled guilty charged that on August 17, 1983, defendant made use of the United States mails to deliver a partnership agreement, a forged warranty deed and fictitious closing statements and lease agreement in furtherance of the fraudulent scheme.  At the sentencing hearing the district court imposed a sentence of confinement and announced that restitution would be required.  In order to enable it to decide the amount of restitution the court directed the probation service to determine the amounts lost by victims of the scheme.  A hearing date was set at which the restitution issues were to be resolved.

3
At the hearing Purther argued that there could be no restitution ordered since the records showed that all of the victims had invested their money before January 1, 1983, the effective date of the Act.  Since the scheme was a fraud, he argued, they suffered the losses when they invested.  Purther's attorney argued that the date of the losses determined whether the Act applied and he contended there was no dispute that all the losses occurred between 1978 and 1982.  The district court ruled that the dates of the victims' investments were not controlling since the mail fraud scheme to which the defendant pled guilty was a continuing enterprise.  Furthermore, the court noted, Purther pled guilty to a particular act in furtherance of the scheme which occurred some eight months after the effective date of the Act.  The court stated that it would order restitution of all money extracted by the scheme regardless of when the investments were made.

4
After the probation service reported that it had identified losses of $762,833 by victims of the scheme the district court entered an order directing Purther to show cause why it should not order restitution for the full amount of the victims' losses.  A complication came to light at the first show cause hearing;  Purther had been placed in involuntary bankruptcy and a trustee had taken control of all his assets.  After liquidating several pieces of property in which Purther had an interest, the trustee advised the district court that he had about $60,000 available for administration expenses and creditors' claims.  Counsel for Purther argued that restitution should be ordered for "a realistic amount."    He informed the court that the defendant had never grossed more than $80,000 per year from his accounting practice, and that it would be impossible for him to repay $762,833 within five years after his release from prison.  He offered no other evidence of Purther's resources or obligations.

5
Because of uncertainty about the effect of the bankruptcy proceedings on the order of restitution and discrepancies between the trustee's records and those of the Department of Justice, the district court adjourned the show cause hearing several times.  The discrepancy between the amount of the claims filed with the trustee and those identified by the probation service was never reconciled.  The probation service did discover a duplication in its report, and eventually advised the court that it had identified victim losses in the amount of $731,209.  The district court ordered the FBI to investigate whether Purther had concealed assets that the trustee had failed to uncover.  The FBI reported that the records of the "enterprises" were hopelessly inadequate and that it had been unable to turn up a "stash."    Purther had admitted extracting between $1,000,000 and $3,000,000 from the victims, and there was evidence that he had made payments of "interest" and "return on investment" to some of them.  Nevertheless, no one disputed the $731,209 figure, and the district court expressed its skepticism that Purther had no assets left beyond the $60,000 fund held by the trustee in bankruptcy.

6
At this point counsel for Purther advised the district court of the court's obligation under 18 U.S.C. Sec. 3580 to consider the defendant's earning capacity and financial requirements and those of his dependents as well as the defendant's financial resources.  However, counsel offered no evidence with respect to these factors.  At the final session of the show cause hearing the district court stated that $731,209 was the "only real figure I have," and announced that he was ready to enter an order setting this as the amount of restitution.  Defense counsel said he had nothing to offer on the accuracy of the figure, but again reminded the court of the factors it was required to take into consideration.  The court responded, "[t]he manner in which we pursue the effort to collect the amount of restitution obviously will take all those considerations into account, his financial condition and the rest."

7
Finding that the defendant had failed to show any good cause why he should not enter a restitution order based on the report of the probation service, the district court ordered Purther to make restitution to the persons identified in the amounts set forth on the probation service list of victims attached to the order, in the total amount of $731,209.

II.

8
Purther presents two issues on appeal.  He renews his argument that the offense was complete when the victims suffered losses, and that the Act therefore does not authorize restitution.  He also contends that the district court erred by not considering the statutory factors when it ordered restitution and leaving that step as part of later enforcement proceedings.

A.

9
We agree with the district court's conclusion that Purther pled guilty to a continuing offense that was operational at least until August 17, 1983.  As the court stated in United States v. Ashdown, 509 F.2d 793, 798 (5th Cir.), cert. denied, 423 U.S. 829, 96 S.Ct. 48, 46 L.Ed.2d 47 (1975), it is not the scheme to defraud, but the use of the mails to execute the scheme that constitutes the offense of mail fraud.  The offense may be committed by use of the mails to lull victims or otherwise further the goal of the scheme after money had been received.  Id. at 799.  So long as the perpetrator is using the mails to further the scheme, he is engaged in the offense.

10
Two courts of appeals have considered the question of applicability of the restitution provisions of the Act to mail fraud cases where the effective date of the Act became an issue.  In United States v. Martin, 788 F.2d 184, 189 (3d Cir.1986), the court held that the losses resulting from a mail fraud scheme "must be separately identified as those which occurred before and those which occurred after January 1, 1983 for the purpose of restitution under the Victim and Witness Protection Act."    (Footnote omitted).  This identification is required, according to the Martin court, because restitution can only be ordered under the Act for amounts the government can show by a preponderance of the evidence to represent the losses suffered by the victims after January 1, 1983.

11
The court in United States v. Barnette, 800 F.2d 1558 (11th Cir.1986), cert. denied --- U.S. ----, 107 S.Ct. 1578, 94 L.Ed.2d 769 (1987), reached a different conclusion on facts very similar to those in the present case.  In Barnette the defendant was convicted, inter alia, of a conspiracy that was charged in the indictment to have begun in July 1976 and to have continued until August 30, 1983.  Although the last overt act charged in the indictment was alleged to have occurred in March 1982, there was evidence of other acts that were performed in furtherance of the conspiracy after January 1, 1983.  The court affirmed a restitution order on the basis of the amount netted from the conspiracy, though the losses were suffered by the victim prior to January 1, 1983.

12
The Act authorizes district courts to order a defendant to "make restitution to any victim of the offense."    18 U.S.C. Sec. 3579(a)(1).  The order may require the defendant who has committed a property offense to return the property, or, "if return of the property ... is impossible, impractical, or inadequate, [to] pay" the larger of the value on the date of the loss or its value on the date of sentencing.  18 U.S.C. Sec. 3579(b)(1)(B).  Restitution is based on a finding or admission that the defendant is guilty of an offense.  The date of the loss is significant only in determining which of two values will be used in setting the amount, not in determining whether restitution may be ordered under the Act.  The language referring to the effective date of the Act states that it [the Act] "shall apply with respect to offenses occurring on or after January 1, 1983."    Victim and Witness Protection Act of 1982, Pub.L. No. 97-291, Sec. 9(b)(2), 96 Stat. 1248, 1258 (1982).  (Emphasis added).

13
A mail fraud scheme that is carried out over a period of time resembles a typical continuing conspiracy in many respects.  It would be virtually impossible to determine precisely when each victim of a scheme such as Purther's actually suffered his or her loss.  This is especially so where, as here, the perpetrator makes some payments of "interest" or "return on investment" and continues to send fraudulent documents to lull the victims long after their last payments.  The district court correctly held that Purther pled guilty to the offense of mail fraud involving a scheme which continued in operation after January 1, 1983, and therefore, was subject to the restitution provisions of the Act.

B.

14
The procedure for issuing an order of restitution is set out in 18 U.S.C. Sec. 3580, which provides in pertinent part:

15
(a) The court, in determining whether to order restitution under section 3579 of this title and the amount of such restitution, shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and such other factors as the court deems appropriate.

16
(b) The court may order the probation service of the court to obtain information pertaining to the factors set forth in subsection (a) of this section.  The probation service of the court shall include the information collected in the report of presentence investigation or in a separate report, as the court directs.

17
* * *

18
* * *

19
(d) Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence.  The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the attorney for the Government.  The burden of demonstrating the financial resources of the defendant and the financial needs of the defendant and such defendant's dependents shall be on the defendant.  The burden of demonstrating such other matters as the court deems appropriate shall be upon the party designated by the court as justice requires.

20
This court has held that the record must contain some indication that the sentencing court considered the defendant's financial condition in ordering restitution.   United States v. Durham, 755 F.2d 511 (6th Cir.1985).  We have never held that the court must make findings on the defendant's financial condition, and it is clear that the statute does not require findings.  Nevertheless, at least one court has invoked its supervisory authority to require "specific findings as to the factual issues that are relevant to the application of the restitution provisions" of the Act.   United States v. Palma, 760 F.2d 475, 480 (3d Cir.1985).  The court in United States v. Atkinson, 788 F.2d 900 (2d Cir.1986), declined to follow Palma, concluding that a requirement of such findings would "unnecessarily encumber the sentencing process."    Id. at 902.  We agree.  The statute only mandates that the sentencing court consider stated factors "and such other factors as the court deems appropriate."  Sec.   3580(a).  Once the required factors are considered the court has very broad discretion in setting the terms of the restitution order.   United States v. Richard, 738 F.2d 1120, 1122 (10th Cir.1984).

21
At oral argument it was suggested that United States v. Shackleford, 777 F.2d 1141 (6th Cir.1985), cert. denied, sub nom.  Brooks v. United States, --- U.S. ----, 106 S.Ct. 1981, 90 L.Ed.2d 663 (1986), requires the district court to make findings with respect to a defendant's financial resources and need.  That was not the holding of Shackleford where the question was whether a defendant had been ordered to pay restitution pursuant to 18 U.S.C. Secs. 3579 and 3580, or 18 U.S.C. Sec. 3651.  Id. at 1146.  The dissent in Shackleford stated in dicta that our Durham decision required the district court "to make certain factual findings before restitution is imposed," citing Durham.  Id. at 1148.  However, Durham required a finding on the question of whether the victim of a crime had received, or would receive, compensation for its losses.  It did not require findings on the defendant's resources and needs.  755 F.2d at 514-15.

22
The problem in the present case arises from the fact that the court appeared to state that it could defer consideration of the statutory factors until enforcement proceedings were initiated after Purther's release from custody.  The statute is not susceptible to this construction.  Section 3580(a) requires the court to consider the listed factors "in determining whether to order restitution ... and the amount of such restitution."    As the court in Atkinson noted, a different balancing is required at the time of enforcement than that required when restitution is ordered.  Because an enforcement proceeding would entail the possibility of reincarceration for failure to pay restitution at a time when a defendant was unable to pay, there would be constitutional considerations not present at the time of sentencing.

23
The record is somewhat confusing.  The district court stated that the defendant had failed to show cause why the amount of restitution should not be set at $731,209.  This was the only evidence of the amount of verified losses and defense counsel stated that he could not contest it.  The only evidence of the amount of Purther's resources was the trustee's report of approximately $60,000.  The district court was not convinced that Purther had no other assets.  Defense counsel's statements showed that there was a dispute as to the proper amount of restitution.  When this occurs, section 3580(d) comes into play.  That section places a particular burden on each party.  Once the government has shown the amount of loss sustained by the victims, it is the defendant's burden to demonstrate the extent of his financial resources and obligations.  18 U.S.C. Sec. 3580(d).  Where the defendant offers no evidence with respect to these factors, the court should not be required to delay its decision further.  In fact, the statute requires that imposition of restitution not "unduly complicate or prolong the sentencing process."    18 U.S.C. Sec. 3579(d).

24
We do not construe the district court's reference to consideration of the factors at the time of enforcement as meaning it had given no consideration to them in setting the amount of restitution.  The court clearly was aware of the trustee's report with reference to the defendant's financial resources.  The defendant produced no evidence relating to the other factors, only statements of counsel, though there were several opportunities to present such proof.  We believe the Durham requirement was satisfied.  Having held that the defendant had failed to show cause why the amount produced by the probation service should not be used, the court was merely pointing out that the defendant would have an opportunity at a later time to avoid punishment for failure to satisfy the restitution order.  This statement by the court also answered an earlier argument by the defendant.  He had maintained that since he was in bankruptcy, he was obviously indigent, and therefore could not be required to repay a large sum.  This court and others have held that indigency is not a bar to an order of restitution.  See United States v. Mounts, 793 F.2d 125, 128 (6th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 673, 93 L.Ed.2d 724 (1986), and cases cited therein.  Since a defendant is given five years after the end of a sentence of imprisonment in which to satisfy a restitution order, his indigency at time of sentencing is not controlling.  His assets and earnings at a later time may change that condition.

25
The judgment of the district court is affirmed.


84 Ga. App. 316 (1951)
66 S.E.2d 345
CUTLER-HAMMER INC.
v.
BELL.
33561.
Court of Appeals of Georgia.
Decided July 16, 1951.
*318 Andrew A. Smith, C. Donald Lowrie, John Kirby, for plaintiff.
Nick Long Jr., for defendant.
GARDNER, J.
1. The first special ground assigns error on the refusal of the court to give in charge the following written request:
"If delivery of property sold is made by the seller beyond the time contracted for, and accepted and paid for by the purchaser without protest upon the ground of delay, this would amount to a waiver by the purchaser of any right to damages against the seller for delay in delivery." It is not error to refuse to charge a request which is not abstractly correct. For a correct statement of the law applicable to the facts of this case see Bernhardt v. Federal Terra Cotta Co., 24 Ga. App. 635 (101 S. E. 588), from which the first headnote is quoted, Standard Coal Co. v. Eclipse Coal Co., 24 Ga. App. 717 (102 S. E. 137), and James Drew Company v. Breedlove, 30 Ga. App. 722 (119 S. E. 532).
2. The second special ground assigns error on the refusal of the court to give in charge the following written request: "The purchaser cannot successfully defend a suit by showing that the goods were not delivered within the time contracted for if he (the purchaser) accepted the delayed shipment without any protest, and made payments thereon. The purchaser by such conduct, would be held to have waived his right to insist upon the delivery of the goods within the time specified by the contract." This language is paraphrased from headnote 4 (b) of Lingo v. Phoenix Hermetic Co., 31 Ga. App. 547 (121 S. E. 253). That case cites Standard Coal Co. v. Eclipse Coal Co., 24 Ga. App. 717 (supra) in which case the distinction *319 is clearly made between waiver of damages resulting from delayed delivery by acceptance and attendant conduct, and waiver by such acceptance of the right to insist upon the original terms of the contract as to time of deliveries. It is not error to refuse to charge a request which is not in all respects abstractly correct, or which, if given in the exact language of the request would be misleading or confusing. Standing alone, this request would seem to contain a correct principle of law but too broadly couched to make the refusal to give it exactly as requested reversible error.
3. As to the general grounds: No attack is made on the charge of the court as a whole or on any excerpt from the charge as given, and the analysis of the issues to be decided by the jury, being clearly and fairly presented to it, its verdict, when supported by any competent evidence will not be disturbed on the general grounds.
As to the right to recover for idle labor and equipment directly traceable to failure to deliver commodities within the time contracted for, see Ladd Lime & Stone Co. v. MacDougald Construction Co., 32 Ga. App. 709 (124 S. E. 551).
Judgment affirmed. MacIntyre, P.J., and Townsend, J., concur.


460 F.Supp.2d 395 (2006)
UNITED STATES of America, Plaintiff,
v.
GENERAL ELECTRIC COMPANY, Defendant.
Town of Fort Edward, Intervenor.
No. 1:05-CV-1270.
United States District Court, N.D. New York.
November 2, 2006.
As Amended November 7, 2006.
*396 Hon. Glenn T. Suddaby United States Attorney for the Northern District of New York, Albany, NY (Barbara D. Cottrell, William H. Pease, Ass't United States Attorneys, of Counsel), United States Dept. of Justice ENRD/EES, Washington, DC (Brian G. Donohue, Peter K. Kautsky, of Counsel), for Plaintiff.
Spriggs & Hollingsworth, Washington, DC (Donald W. Fowler, Stephen A. Klein, of Counsel), Greenberg Traurig, LLP, Albany, NY (Henry M. Greenberg, of Counsel), General Electric Co., Albany, NY (Michael S. Elder, Sheri L. Moreno, of Counsel), for Defendant.
McNamee, Lochner, Titus & Williams, P.C., Albany, NY (John J. Privitera, of counsel), Mark J. Schachner, Glens Falls, NY, for Intervenor.
Hon. Eliot Spitzer, Attorney General for the State of New York, Katherine Hudson, Esq., Eugene J. Leff, Esq., Ass't Attorneys General, of Counsel, Albany, NY, for Proposed Amicus State of New York.

MEMORANDUM-DECISION and ORDER
HURD, District Judge.
I. INTRODUCTION
The United States of America brought this action against General Electric Company ("GE") pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 96019675. It sought injunctive relief and recovery of response costs. A hearing on the issues, described in detail below, was held in Utica, New York, on August 2, 2006. Decision was reserved.
II. FACTUAL BACKGROUND
The following facts are as alleged in the complaint and as set forth in the record. The background facts are not in contention.
GE operated two capacitor manufacturing facilities along the upper Hudson River in New York State. GE used polychlorinated biphenyls ("PCBs") in its operations. Over a period of about thirty years, ending in 1977, GE discharged oils containing PCBs both directly and indirectly into the Hudson River. The total quantity of PCBs discharged directly into the river has been estimated to be as high as 1,330,000 pounds (approximately 605,000 kilograms).
PCBs introduced into the river adhere to sediments, with some fraction being carried in the water column. PCBs are hazardous substances within the meaning of CERCLA. 42 U.S.C. § 9601(14). PCBs have been detected in the Hudson River from the Village of Hudson Falls ("Hudson *397 Falls") in the north to the Battery in New York City in the south, leading to the designation of an almost 200 river-mile stretch of the river as the Hudson River PCBs Superfund Site ("Site") pursuant to CERCLA. See 26 U.S.C.A. § 9507 (2002) (establishing a Hazardous Substance Superfund); see also 42 U.S.C.A. § 9611 (2005) (setting forth uses for the Superfund). PCBs have been found in water, sediments, plant life, animal life, and the soils at the Site.
Areas of Hudson River sediments upstream (north) of the former Fort Edward Dam also contain PCBs, after exposure to the contamination when the water level dropped following removal of the dam in 1973. These five "Remnant Deposits" are included within the Site. The Upper Hudson River portion of the Site covers just over 43 river miles from the Fenimore Bridge in Hudson Falls to the Federal Dam at Troy. The Lower Hudson River portion of the Site begins at the Federal Dam at Troy and continues to the southern tip of Manhattan at the Battery in New York City.
In September 1984 the United States Environmental Protection Agency ("EPA") placed the Site on the National Priorities List. See 42 U.S.C.A. § 9605(a)(8)(B) (2005). It then issued a Record of Decision ("1984 ROD") for the Site. The 1984 ROD required a detailed evaluation of the Waterford Water Works public water supply treatment facility. The New York State Department of Environmental Conservation ("NYS DEC"), funded by the EPA, conducted a study at the Waterford Water Works and concluded that standards applicable to public water supplies were met.
The 1984 ROD also required in-place capping, containment, and monitoring of exposed sediments (the Remnant Deposits), as well as stabilization of associated riverbanks and revegetation of the areas. Pursuant to a 1990 consent decree, GE completed the remediation for the Remnant Deposits called for by the 1984 ROD. It continues to conduct maintenance and long-term monitoring pursuant to that consent decree.
An interim "No Action" remedy was selected for the Hudson River sediments because of uncertainty surrounding reliability and effectiveness of technologies available to remediate the contaminated river sediment.
In 1989 EPA initiated a reassessment and feasibility study, in part due to availability of improved technologies for sediment dredging and treatment. EPA proposed a plan for sediment cleanup in the Upper Hudson River portion of the Site which called for dredging contaminated sediment. The plan was released for comment. Thousands of comments, both in favor of and opposed to dredging, were received. GE strongly opposed dredging.
In February 2002, the EPA issued another Record of Decision ("2002 ROD") selecting a remedy for the Upper Hudson River portion of the Site. The 2002 ROD requires targeted environmental dredging of about 2.65 million cubic yards of sediment (containing about 150,000 pounds of PCBs) from the river, in two phases. The 2002 ROD called for the dredged sediment to be transported, by barge or in-river pipeline, to a sediment processing/transfer facility ("processing facility"). At the processing facility the sediment would undergo dewatering and stabilization prior to being sent to an appropriate, licensed offsite landfill for disposal. Treated water would be returned to the river. Transport of the dewatered sediment offsite for disposal would be by rail or possibly by barge. Places in the river that were dredged would be backfilled with material that was brought in by barge or rail.
*398 The 2002 ROD specified that the processing facility would be considered on site for purposes of the CERCLA permit exemption. (2002 ROD at 90.) Also, the EPA was tasked with selecting a site for the processing facility.
Completion of the remediation called for by the 2002 ROD was expected to take six years  one year for the phase one dredging and five years for phase two. The cost of this remediation was estimated at $460 million.
In the first phase only about ten percent of the total dredging would take place. The 2002 ROD set Engineering Performance Standards, containing objective criteria, to assure that the dredging would comport with human health and environmental standards,[1] and would be timely completed. External peer review of the phase one dredging in light of the Engineering Performance Standards would be conducted. Additionally, a written report at the conclusion of phase one dredging would be subject to peer review to assure the effectiveness of the remedy as set forth in the Engineering Performance Standards. Necessary modifications would be made to the dredging process and/or performance standards. Phase two dredging would then begin.
In July 2002 and August 2003 the United States and GE entered into Administrative Orders on Consent. Pursuant to these orders on consent GE undertook a sediment sampling program, collecting over 50,000 samples. GE also mapped the river sediment using side-scan sonar and other methods which, in combination with the sediment sampling, was used to target and refine dredging locations. GE developed a remedial design for the ROD remedy comprised of a detailed plan for dredging, transport, and disposal of sediment as well as replacing the habitat. Work plans for the design of dredging, baseline monitoring, cultural and archeological resources assessment, and habitat delineation and assessment were developed. A community health and safety plan was also developed. Pursuant to the 2002 and 2003 orders on consent, GE reimbursed EPA for certain past costs and agreed to pay certain costs incurred by EPA in the future, totaling $35.625 million.
Meanwhile, the EPA proceeded to evaluate sites for a processing facility. First locations had to be identified that met the requirements for a processing facility; The site had to be appropriate to be used to transfer sediment from the river to a processing area, dewater the sediment, treat the water, and transfer the dewatered sediment to rail or barge for off-site disposal. In December 2002 EPA issued a facility siting concept document identifying decision-making milestones including developing engineering and siting criteria, implementing community involvement activities, identifying and evaluating potential sites, and conducting site-specific field investigations. Twenty-four potential sites had been identified by June 2003. Site visits were conducted and various data were evaluated to determine suitability (such as proximity of residences and rail facilities). Potential sites were narrowed to a field of seven final candidates. Additional evaluation was conducted bringing the final field to five. The field was further narrowed to three after considering in particular the amount of useable acreage, rail yard suitability, waterfront suitability, environmental *399 conditions, road access, and proximity to dredge areas.
In April 2004 the EPA released a Draft Facility Siting Report for a 90day public comment period. Five potential sites were specified as suitable and three were recommended. An industrial area in the Town of Fort Edward ("Fort Edward") was among the three recommended potential sites.[2] Comments were evaluated and further investigations were conducted. The EPA then selected the Bethlehem and Fort Edward sites for processing facilities for the phase one remedy. The Fort Edward site is located along the Champlain Canal approximately 1.4 miles from the Hudson River.[3]
After considerable negotiations, the proposed Consent Decree was agreed upon by the United States and GE. The Consent Decree adopts the dredging remedy selected by the 2002 ROD. It was published in the Federal Register pursuant to 28 C.F.R. § 50.7 and 42 U.S.C. § 9622(d). See Notice of Lodging of Consent Decree, 70 Fed.Reg. 5977101 (Oct. 13, 2005).
The proposed Consent Decree contains multitudinous provisions (it is more than 75 single-spaced pages long). Of particular interest here is a provision that purports to exempt GE from any requirements for permits for work conducted entirely on-site. This provision further specifies that the processing facility will be considered to be on-site for purposes of the CERCLA permit exemption. It states:
As provided in Section 121(e) of CERCLA and Section 300.400(e) of the NCP, no permit shall be required for any portion of the Work conducted entirely on-site (i.e., within the areal extent of contamination or in very close proximity to the contamination and necessary for implementation of the Work). The Sediment Processing/Transfer Facility(ies) shall be considered on-site for purposes of the CERCLA Section 121(e) permit exemption. Where any portion of the Work that is not on-site requires a federal or state permit or approval, Settling Defendant shall submit timely and complete applications and take all other actions necessary to obtain all such permits or approvals.
(Proposed Consent Decree at 12 ¶ 8(a)) (emphasis added.) Thus, according to this provision of the Consent Decree, GE will not be required to obtain federal, state or local permits to build and operate the processing facility.
Pursuant to the Consent Decree, in addition to building a processing facility GE must perform phase one work consisting of limited dredging in the upper Hudson River, and processing and disposal of the dredged sediment as well as the follow-up evaluation set forth in the 2002 ROD. However, the Consent Decree permits GE to opt out of performing work during phase two. As explained by the government, the opt out provision was included because of the uncertainty of the scope of remediation (and its cost) during phase two due to the peer review and possibly resulting work plan changes. The Consent Decree provides that if GE opts out of phase two performance, then the government *400 may use any available provision of law to accomplish the remedy, including, for example, issuing a unilateral administrative order, seeking injunctive relief requiring GE to perform the remedy, and performing the remedy itself using Superfund monies then suing GE for reimbursement. Thus, under the Consent Decree, GE's liability for remediation of the Hudson River PCBs Superfund Site is resolved only if it performs both phase one and phase two of the selected remedy.
Further, the Consent Decree sets forth stipulated penalties should GE fail to perform the required remediation.
In addition to performance of remediation relating to phases one and two, the Consent decree requires GE to pay up to $43,000,000 of costs incurred by EPA for phase one work and evaluation and, if GE elects to perform phase two, pay up to an additional $32,500,000 of EPA's response costs for the remainder of the required remediation. GE would also be responsible for payments relating to the CERCLA-required five-year follow-up reviews. Thus, under the proposed Consent Decree GE has agreed to pay up to a total of $78 million of response costs incurred at the Hudson River PCBs Superfund Site in addition to the $37 million it has already paid pursuant to administrative orders on consent.
III. PROCEDURAL HISTORY
The United States filed the complaint in this action on October 6, 2005. A proposed Consent Decree was filed on the same day. On May 17, 2006, the United States moved for entry of the Consent Decree. GE agreed not to oppose entry of or challenge any provision of the Consent Decree.
On June 2, 2006, Fort Edward moved to intervene to oppose entry of the Consent Decree so long as it contained paragraph 8(a), which, as described above, exempts the processing facility from federal, state or local permits that would otherwise be required. Fort Edward argued that the permit exemption paragraph was illegal and unenforceable because the processing facility at the selected site could not be "entirely onsite" under CERCLA 121(e)(1).[4] The United States agreed to Fort Edward's intervention request, turning the focus to the substantive issue of the permit exemption and the meaning of "entirely onsite." On July 6, 2006, the motion to intervene was granted, giving Fort Edward the permission it sought to intervene for the limited purpose of challenging the permit exemption. The order states:
that the Town of Fort Edward is permitted limited intervention in this matter solely to present oral argument (as well as responsive pleadings) to this Court on July 28, 2006, with respect to whether the dewatering facility selected by the U.S. Environmental Protection Agency related to the sediment dredging project of the Upper Hudson River, is "on-site" for purposes of Section 121(e) of the Comprehensive Environmental Response, Compensation, and Liability Act, *401 42 U.S.C. § 9621(e), and its supporting regulations.
(Order Docket No. 24.) The United States filed a response to Fort Edward's objection to the permit exemption. General Electric also made a submission in this regard. Oral argument was heard on August 2, 2006. Appearances were made by the United States, Fort Edward, General Electric, and proposed amicus State of New York. It was noted that Fort Edward's motion to intervene had been granted. Decision on the motion to enter the Consent Decree was reserved.
IV. DISCUSSION
A. Statutory & Regulatory Framework
CERCLA 121(e)(1) states that other permits are not required for remediation that takes place "entirely onsite." Specifically, the statute provides that "[n]o Federal, State, or local permit shall be required for the portion of any removal or remedial action conducted entirely onsite, where such remedial action is selected and carried out in compliance with this section." 42 U.S.C. § 9621(e)(1). EPA regulations repeat the "entirely onsite" permit exemption. Hazardous Substances Response Rules, 40 C.F.R. § 300.400(e) (2006). The EPA rules go on to define onsite: "The term on-site means the areal extent of contamination and all suitable areas in very close proximity to the contamination necessary for implementation of the response action." Id.
B. Standard of Review
In reviewing a proposed consent decree, a district court must determine if it "is fair, reasonable, and faithful to the objectives of CERCLA. United States v. Cannons Eng'g Corp., 899 F.2d 79, 84 (1st Cir.1990); see Publicker Indus. Inc. v. United States (In re Cuyahoga Equip.), 980 F.2d 110, 119-20 (2d Cir.1992) (finding that the lower court "acted within its discretion in approving the settlement agreement as fair, reasonable and consistent with CERCLA's objectives").
The fairness inquiry has two facets, procedural and substantive fairness. Cannons Eng'g Corp., 899 F2d at 86. To determine procedural fairness the negotiation process is reviewed to "gauge its candor, openness, and bargaining balance." Id. Substantive fairness deals with "corrective justice and accountability; a party should bear the cost of the harm for which it is legally responsible." Id. at 87.
Evaluation of the reasonableness of a proposed CERCLA consent decree also has multiple facets. Id. at 89. For example, the "technical adequacy, primarily concerned with the probable effectiveness of proposed remedial responses," must be considered. Id. at 89-90. Also important considerations are whether the settlement "compensates the public for the actual (and anticipated) costs of remedial and response measures," and whether a settlement that does not fully compensate for costs is nonetheless a cost-effective alternative to litigation that will conserve public and private resources. Id. at 90.
CERCLA has two main objectives: "to encourage prompt and effective responses to hazardous waste releases and to impose liability on responsible parties." In re Cuyahoga Equip., 980 F.2d at 119; Cannons Eng'g Corp., 899 F.2d at 90-91. It is apparent that consideration of CERCLA's objectives overlays determinations of both fairness and reasonableness.
Moreover, in evaluating the proposed Consent Decree, deference is accorded to a government agency, such as the EPA, and other parties proposing the settlement. In re Cuyahoga Equip., 980 F.2d at 118 (citing Chevron, U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-44, 104 S.Ct. 2778, 2781-82, 81 *402 L.Ed.2d 694 (1984); Cannons Eng'g Corp., 899 F.2d at 84). Further, the policy of encouraging settlements is particularly strong where the settlement is proposed by a government agency acting in the public interest. Id.; Cannons Eng'g Corp., 899 F2d at 84.
C. Analysis
As noted previously, the proposed Consent Decree is a long and detailed compromise for remediation of the PCB-laden Hudson River reached after lengthy negotiations between the EPA and. GE. The government has submitted a lengthy and detailed memorandum addressing the objections lodged during the public comment period and demonstrating how the Consent Decree is fair and reasonable in light of those comments. Deference must be accorded to the government's recommendation that the Consent Decree be entered.
There is no indication that there was any flaw in the negotiation process that would render it procedurally unfair. For example, in 1989 when the EPA released its proposed plan for remediation which included dredging contaminated sediment, thousands of comments were received on both sides of the issue. GE was opposed to dredging. However, as technology improved and GE conducted testing of the sediment, GE became committed to the dredging remedy and now supports entry of the Consent Decree. There is no reason to speculate that the parties were anything but candid and open throughout the negotiations. Further, the bargaining balance is fairly even with the government in a strong bargaining position and GE being a large company with substantial resources. The negotiation process was procedurally fair.
The proposed Consent Decree is also substantively fair. PCBs were introduced into the Hudson River at GE's capacitor manufacturing plants at Hudson Falls and Fort Edward; there is no assertion to the contrary. Thus, GE is bearing the cost of the harm by agreeing to conduct remediation and make payment to the United States for costs it has and will incur related to the remediation. The Consent Decree effectively holds GE accountable for the hazardous substance contamination of the river. The Consent Decree is both procedurally and substantively fair.
As to reasonableness, no question has been raised about the technical adequacy of the remedy. (See, e.g., Intervenor's Mem. Support at 3 (stating that "the Town supports this remedy.")) In fact, in the early stages of planning for the clean-up of the river, no remedy for the sediment was chosen. Rather, selection of the remedy was delayed until technological advances were made that provided a feasible and effective remedy. Also, review processes are in place to evaluate the effectiveness of the dredging remedy after phase one and make adjustments to improve effectiveness if necessary prior to beginning phase two. Because of the review and adjustment process built into the remedy it is impossible to accurately predict the cost for phase two. However, GE has agreed to either conduct the phase two remediation, or in the alternative, opt out of phase two, and possibly be liable for the response costs incurred by EPA in conducting phase two.
Additionally, GE has completed remediation of the Remnant Deposits called for in the 1984 ROD and it continues maintenance and monitoring of those areas. It has undertaken sediment sampling and river sediment mapping programs to target and refine dredging locations pursuant to administrative orders on consent. It has incurred the costs associated with completing the Remnant Deposit remediation and the sampling and mapping programs. It also has reimbursed EPA for certain past costs incurred and agreed to *403 reimburse certain future costs. Under the proposed consent decree GE will pay up to $78 million to cover government costs, in addition to the $37 million already paid. These payments and the work GE will perform go far in compensating the public.
Further, approval of the Consent Order will allow remediation to go forward after many years of delay. The compromise represented by the Consent Order is a cost-effective alternative to litigation that will allow government and GE resources to be spent on remediation rather than litigation. In sum, the Consent Order is reasonable. Finally, as demonstrated by the analysis above, the Consent Order is faithful to the CERCLA objectives of encouraging prompt and effective responses and imposing liability on responsible parties.
Intervenor Fort Edward argues that the proposed Consent Order is not fair and reasonable when viewed in conjunction with CERCLA Section 121, 42 U.S.C. § 9621(e)(1). The essence of its argument is that paragraph 8(a) of the Consent' Order purports to designate the processing facility as "on site" (and exempt from permitting requirements) when, if built at the selected Champlain Canal location, it does not fall within the CERCLA definition of "entirely on site." Fort Edward contends that a processing facility located at the Champlain Canal is not exempt under Section 121, but must be subject to federal, state, and local permit requirements.
As set forth above, CERCLA exempts remediation activities which occur "entirely onsite" from federal, state, and local permit requirements. 42 U.S.C. § 9621(e)(1). EPA regulations define "onsite" as within "the areal extent of contamination and all suitable areas in very close proximity to the contamination necessary for implementation of the response action." 40 C.F.R. § 300.400(e)(1). This definition of "on-site" cannot be challenged.[5]See 42 U.S.C. § 9613(a) (directing that review of EPA regulations pertaining to CERCLA may be challenged within ninety days of promulgation; otherwise, the regulations are not subject to review). To restate the regulation in other words, in order to be considered on site, the location must be necessary, suitable, and in very close proximity to the contaminated area.
Here the contaminated area is the Hudson River. There is agreement that the Champlain Canal location is suitable and convenient. (Intervenor's Reply Mem. at 3 ("The Town agrees that the general location of the facility is suitable and convenient.")) It also is agreed that locating the processing facility near the river to efficiently handle the contaminated sediment dredged from the river, return the water removed from the sediment to the river, and transport the dewatered sediment to a disposal site is necessary to the dredging remedy.
Contention arises regarding whether it is in very close proximity to the contamination thereby meeting the definition of "on site" and whether it is "entirely on site" pursuant to CERCLA.
EPA contends that the Champlain Canal site is in close proximity to the contamination-the Hudson River sediment. Further, the EPA has propounded its intent that any processing facility selected would be considered on site for purposes of CERCLA § 121(e), 42 U.S.C. § 9621(e)(1), at least since issuance of the 2002 ROD defining it as such.
*404 The Hudson River PCBs Superfund Site is almost 200 miles long. In comparison to the overall size of the Site, a processing facility a mere 1.4 miles away could easily be considered to be in very close proximity. Even compared to the 43mile Upper Hudson River portion of the Site, a facility 1.4 miles from the river would be in very close proximity. That the Champlain Canal is not contaminated with hazardous substances is irrelevant. The EPA's view that the Champlain Canal location is in very close proximity to the contamination and therefore "on site" is reasonable. Its interpretation of its regulations is entitled to deference. See Chevron U.S.A. Inc., 467 U.S. at 844, 104 S.Ct. at 2782.
Fort Edward argues that the EPA's interpretation that the processing facility is "on site" does not comport with CERCLA's requirement that exempt remediation activities be "entirely" on site. A plain reading of the statute illustrates the error in Fort Edward's argument. Entirely means wholly or completely. See Black's Law Dictionary 573 (8th ed.2004). Partially is the antonym of wholly and completely. Thus, if the processing facility was not "entirely" on site it would be "partially on site." If it were "partially on site" it would be part on site and part off site.[6] The selected location for the processing facility at Champlain Canal is either "on site" or "off site." It is clearly not "partially on site." Rather, it is entirely on site. The EPA's interpretation that the processing facility is "entirely" on site does comport with CERCLA § 121(e).
The location of the processing facility at Champlain Canal is necessary, suitable, and in very close proximity to the contamination, therefore meeting the EPA definition of "on site." Also, contrary to Fort Edward's arguments, it is "entirely on site" within the meaning of CERCLA.
V. CONCLUSION
Deference is accorded to the United States and GE as the parties proposing the settlement. The proposed Consent Decree is both procedurally and substantively fair. It also is reasonable and faithful to the objectives of CERCLA. The Champlain Canal location selected for the processing facility is necessary, suitable, and in very close proximity to the contaminated Hudson River, thereby meeting the EPA definition of "on site." This finding is not contrary to CERCLA provisions, because the processing facility is, in fact, "entirely" (not partially) on site. Having given careful consideration to all the provisions of the proposed Consent Decree, it is determined that it is reasonable, fair, consistent with CERCLA, and in the public interest.
Accordingly, it is
ORDERED that
1. The proposed Consent Decree is APPROVED; and
2. The approved Consent Decree, filed simultaneously herewith, constitutes a Final Judgment pursuant to Fed.R.Civ.P. 54(b).
IT IS SO ORDERED.
NOTES
[1]  The Engineering Performance Standards set forth in the 2002 ROD address dredging-related resuspension of sediments from the river bottom, residual levels of PCBs subsequent to dredging, and the productivity of the dredging work. In addition, the 2002 ROD set forth quality of life standards addressing light, noise, odor, traffic, and navigational concerns.
[2]  The other recommended potential sites were in the Town of Schaghticoke, Rensselaer County and in Bethlehem, Albany County.
[3]  The Champlain Canal runs as a channel in and along the Hudson River for thirty-seven miles, from Waterford to Fort Edward. At Fort Edward the Champlain Canal diverges from the river, cutting across land in a northeasterly direction for twenty-three miles until it meets the southern tip of Lake Champlain at Whitehall.

The proposed location for the processing facility is on the northeastern extension of the canal, about 1½ miles from where it diverges from the river.
[4]  The Complaint in Intervention states:

The Town intervenes herein because the May 17, 2006 proposed Judicial Consent Decree is illegal and unenforceable as a matter of federal law and local law in that it declares, without any basis in fact or law, that a massive proposed hazardous waste treatment facility, which would be built if the Judicial consent Decree is ordered by this Court, is "entirely on-site" when it is, in fact, in an entirely clean area of the Town, 1.4 miles away from the Hudson River PCB Site. . . . The Town hereby seeks a declaratory judgment that the proposed Judicial Consent Decree is illegal, unenforceable and may not be "so ordered" by this Court so long as it contains the illegal and offensive paragraph 8(a).
(Compl. in Intervention ¶ 1.)
[5]  Because the regulations at issue cannot be challenged, arguments relating to the public comments to the proposed rule, which in effect challenge the rule, are immaterial. For example, Fort Edward relies (in part) upon State of Ohio v. EPA, 997 F.2d 1520 (D.C.Cir. 1993). However, State of Ohio was a challenge to a proposed regulation and its reasoning is inapposite here.
[6]  Although not at issue here, it seems apparent that the word "entirely" was included in Section 121 to assure that, to the extent that remediation activity takes place off site, permit requirements apply.