U.S. v. Consolidation Coal Co.
| Citation | 345 F.3d 409 |
| Decision Date | 26 September 2003 |
| Docket Number | No. 02-3308.,02-3308. |
| Parties | UNITED STATES of America, Plaintiff, v. Consolidation Coal Co.; Triangle Wire & Cable, Inc., Third-Party Plaintiffs-Appellees, Neville Chemical Co., Third-Party Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Neil G. Epstein (argued and briefed), ECKERT, SEAMANS, CHERIN & MELLOTT, Philadelphia, Pennsylvania, for Defendant-Appellant Neville Chemical Company.
Martha E. Horvitz, Bricker & Eckler, Columbus, OH, Daniel M. Darragh (argued and briefed), BUCHANAN INGERSOLL PROFESSIONAL CORPORATION, Pittsburgh, Pennsylvania, for Defendant-Appellee Consolidation Coal Company.
ON BRIEF:
Neil G. Epstein, Carol L. Press (briefed), ECKERT, SEAMANS, CHERIN & MELLOTT, Philadelphia, Pennsylvania, Richard S. Wiedman (briefed), ECKERT, SEAMANS, CHERIN & MELLOTT, Pittsburgh, Pennsylvania, for Appellant.
Daniel M. Darragh, BUCHANAN INGERSOLL PROFESSIONAL CORPORATION, Pittsburgh, Pennsylvania, Joseph D. Lonardo (briefed), VORYS, SATER, SEYMOUR & PEASE, Washington, D.C., for Defendant-Appellee Triangle Wire & Cable, Inc.
Before: DAUGHTREY and GILMAN, Circuit Judges, CALDWELL, District Judge.*
Third-party defendant Neville Chemical Company appeals a district court decision holding it liable for a portion of the past and future costs of cleanup at the Buckeye Reclamation Landfill in Belmont County, Ohio. The landfill has been on the National Priorities List as a Superfund site since 1983. Third-party plaintiffs Consolidation Coal Company (referred to throughout the record as Consol) and Triangle Wire & Cable, Inc., brought an action under § 113 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (CERCLA), 42 U.S.C. §§ 9601 et seq., seeking a declaration of liability and equitable allocation of response costs to Neville Chemical. Although the chemical company stipulated that it had deposited 472,000 gallons of wastewater sludge from its Pennsylvania treatment plant in the landfill between December 1978 and February 1979, Neville Chemical claims that the district court was unreasonable in imposing any of the cleanup costs on it because the wastewater caused no harm. The district court found Neville Chemical liable under CERCLA and determined its equitable share of past and future response costs for cleanup of the landfill to be 6%. See United States v. Consolidation Coal Co., 184 F.Supp.2d 723, 752 (S.D.Ohio 2002).
For the reasons set out below, we affirm the district court's decision as to liability and equitable share based on the reasoning in the district court opinion. However, as to the district court's calculation of prejudgment interest, awarded to Consol and Triangle Wire under 42 U.S.C. § 9607(a), we find it necessary to remand the case for further proceedings.
The record indicates that three different kinds of waste were deposited at the Buckeye Reclamation Landfill over the last seven decades. First, the landfill contains "gob," material left over from coal mining operations in the area from 1934 to 1954 and composed of coal, rock, clay, and other geological materials. The "gob" was left on the property before the area was a landfill. Second, the landfill contains industrial waste, which was disposed of primarily in a small area known as the "waste pit." The parties have stipulated the weight, type, and relative amount of the 45,000 tons of industrial waste that various entities deposited at the landfill from 1972 to 1980. Neville Chemical's share was calculated to be 4.78%. Third, the landfill contains municipal waste, between 755,000 and 955,000 tons of which were disposed of at the landfill from 1970 to 1991. All three types of waste contain hazardous substances and contribute to the current need for cleanup.
After investigation by the Ohio Environmental Protection Agency (OEPA) and the United States Environmental Protection Agency (USEPA), the USEPA placed the landfill on the list of Superfund sites in September 1983. In December 1984, the USEPA notified a number of companies that it considered them potentially responsible parties (PRPs) and requested that the companies conduct a remedial investigation and feasibility study. Neville Chemical declined to participate, but the other companies worked with the USEPA to develop an administrative consent order that required a remedial investigation and feasibility study, as well as an endangerment assessment. After evaluating the results of the remedial investigation and feasibility study, the USEPA selected construction of a solid waste landfill cap as the appropriate remedy, at a cost of $48 million to $52 million. When the USEPA notified non-participating PRPs of their potential liability, a number of them began to participate in the remediation process that resulted in a second administrative consent order. Neville Chemical again declined to participate.
In 1994, Consol filed a complaint for declaratory judgment, in part to determine liability and allocation of costs under CERCLA, and the United States filed a complaint for the recovery of costs. The cases were consolidated and realigned so that the sole plaintiff in both cases was the United States. Ten of the defendant PRPs filed a third-party complaint for contribution against 64 third-party defendants, including Neville Chemical. During this time, the USEPA and the cooperating PRPs, including Consol and Triangle Wire, continued to negotiate modifications to the remediation plan. Although invited to do so by the court, Neville Chemical once again declined to participate.
As a result of the negotiations, the USEPA modified its decision as to the chosen remediation for the site. The cost of the revised plan was estimated at $25 million, about one-half of the cost of the original plan. In March 1998, the court entered a consent decree between the United States and the cooperating PRPs providing for performance of the selected remediation at the landfill site. Consol, acting individually and on behalf of a number of other cooperating PRPs, and Triangle Wire continued to pursue their third-party action against Neville, seeking contribution under CERCLA's § 113.
After a long and detailed analysis, the district court ultimately ruled for Consol and Triangle Wire, determining that Neville Chemical was responsible for 6% of the past and future response cost of the Buckeye Reclamation Landfill. Neville appeals both the finding of liability and the allocation of a 6% equitable share.
A district court's allocation of response costs in a CERCLA contribution will not be set aside in the absence of a finding that the district court abused its discretion. See United States v. R.W. Meyer, Inc., 932 F.2d 568, 573 (6th Cir. 1991). "An abuse of discretion is found where we are left with the `definite and firm conviction that the trial court committed a clear error of judgment.'" Kalamazoo River Study Group v. Rockwell Int'l Corp., 274 F.3d 1043, 1047 (6th Cir.2001) (quoting Logan v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir.1989)).
In addition, we set aside factual findings underlying the district court's allocation of response costs only if such findings are clearly erroneous. Kalamazoo River Study Group v. Rockwell Int'l Corp., 274 F.3d at 1047. "A factual finding is clearly erroneous where, although there is evidence to support that finding, `the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Id., quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948).
The district court found that Neville Chemical was liable as a responsible party after articulating the purpose of CERCLA, i.e., facilitating prompt cleanup of hazardous waste sites financed by those responsible for the hazardous waste, and based on the relevant statutory sections governing liability, §§ 107(a) and 113(f)(1), 42 U.S.C. §§ 9607(a) and 9613(f)(1). Under those provisions, a party is liable in a contribution claim under § 113(f)(1) if it was liable or potentially liable under § 107(a). The court found Neville Chemical liable to Consol and Triangle Wire under the § 113 claim because all four elements necessary for § 107(a) liability were met: (1) the Buckeye Reclamation Landfill is a "facility" within the meaning of CERCLA; (2) a release of hazardous substance occurred there; (3) the release caused Consol and Triangle Wire to incur response costs; and (4) Neville Chemical falls into one of the four categories of PRPs listed in § 107(a). See Kalamazoo River Study Group v. Menasha Corp., 228 F.3d 648, 653 (6th Cir. 2000). The district court did not abuse its discretion in finding Neville Chemical liable and, in fact, nowhere in its briefs does the chemical company contest the district court's conclusion of law that it meets all four elements of liability articulated in Kalamazoo River Study Group and § 107(a).
The district court next recognized the broad discretion it had in making CERCLA contribution allocations using "such equitable factors as the court determines are appropriate." 42 U.S.C. § 9613(f)(1). It discussed commonly used equitable factors, including the six so-called "Gore factors" considered by Congress in enacting the law and the four "critical factors" identified by Judge Torre in United States v. Davis, 31 F.Supp.2d 45, 63 (D.R.I.1998), aff'd, 261 F.3d 1 (1st Cir.2001).1 Neither of these lists is intended to be exhaustive or exclusive, and "in any given case, a court may consider several factors, a few factors, or only one determining factor ... depending on the totality of ...
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