United States v. Olin Corp.

• Decision Date: 04 April 1985
• Docket Number: Civ. A. No. CV80-PT-5300-NE,CV84-PT-1194-S.
• Citation: 606 F. Supp. 1301
• Parties: UNITED STATES of America, Plaintiff, v. OLIN CORPORATION, Defendant. Floyd WILHOITE, et al., Plaintiffs, v. OLIN CORPORATION, a corporation; and United States of America, Defendants.
• Court: U.S. District Court — Northern District of Alabama

606 F. Supp. 1301

UNITED STATES of America, Plaintiff, v. OLIN CORPORATION, Defendant.

Floyd WILHOITE, et al., Plaintiffs, v. OLIN CORPORATION, a corporation; and United States of America, Defendants.

Civ. A. Nos. CV80-PT-5300-NE, CV84-PT-1194-S.

United States District Court, N.D. Alabama, Northeastern and Southern Division.

April 4, 1985.

Fournier J. Gale, III & Frank D. McPhillips, Maynard, Cooper, Frierson & Gale, P.C., Birmingham, Ala., for plaintiffs Wilhoite, et al.

Kenneth A. Reich, Dept. of Justice, Environmental Enforcement Sect., Washington, D.C., for the U.S.

G. Lee Garrett, Jr., Hansell, Post, Brandon & Dorsey, Atlanta, Ga., for defendant Olin.

MEMORANDUM OPINION

PROPST, District Judge.

Olin Corporation (hereinafter referred to as "Olin") is a Virginia corporation with its principal office and place of business in Connecticut. It is qualified to do business in Alabama. From approximately 1947 to 1971, Olin leased Redstone Arsenal from the United States in order to operate a plant for the manufacture and use of chemicals.¹ Plaintiffs are citizens of the State of Alabama who allege injury from the operation of the chemical plant.

This matter is before the court on a Motion for Summary Judgment filed by Olin on June 11, 1984. On July 9, 1979, the first complaint was filed in a line of cases² encompassing the subject matter of the instant case. In these cases, which were later consolidated, the State of Alabama and the United States sought injunctive relief to require Olin to eliminate DDT from, and restore the environment in, the vicinity of Redstone Arsenal. In paragraphs 17-20 of the United States' First Amended Complaint and paragraph A.1 of its prayer for relief, the following relief was requested against Olin:

A. Entry of a mandatory permanent injunction requiring Olin to do the following:

1. Take all appropriate and necessary remedial measures to restore the environment at RSA and in the vicinity of RSA including Wheeler Wildlife Refuge and the Tennessee River to its original condition prior to the manufacturing and disposing of DDT at RSA, including removal of DDT wastes and restocking Huntsville Spring Branch, Indian Creek, the Tennessee River and Wheeler National Wildlife Refuge with the fish, birds and other wildlife.

In the prayer for relief in Alabama's Amended Complaint, it requested that the court:

1. Order Defendant to take, at its own expense, all steps necessary to eliminate the public nuisance created by the presence of DDT pollution in the waters, water bottoms, aquatic life, and wildlife of Huntsville Spring Branch, Indian Creek, the Tennessee River, and the Wheeler Wildlife Refuge.

As part of the resolution of the consolidated DDT cases, Olin, the United States, and Alabama entered into a consent decree. Prior to final approval and entry of the consent decree, the settlement of the consolidated cases received widespread publicity throughout the Huntsville-Decatur, Alabama area. The consent decree and related documents were made available for public comment. The Justice Department, as required by 28 C.F.R. § 50.7, announced the proposed settlement on April 15, 1983, in 48 Fed.Reg. 16359 (April 15, 1983). The announcement indicated the public availability of the consent decree and related settlement documents and invited public comment on the proposed settlement for a thirty-day period.

Following the thirty-day comment period, the court held hearings concerning the proposed consent decrees and heard witnesses testify concerning the requirements set forth in the consent decree and its reasonableness. After the hearings, the court entered the consent decree on May 31, 1983.

The consent decree set forth a plan to collect, analyze and evaluate data to develop and implement a remedial program. The plan established a performance standard for the DDT level in certain fish species, required the performance of investigative programs to study fish, in situ sediment, suspended sediment transport, and water characteristics. In addition, Olin was required to develop a remedial program consistent with comprehensive goals and objectives.

Prior to and following entry of the consent decree, Olin began to conduct studies in the area, employed individuals to work on the project, and has expended substantial sums of money in meeting its obligations under the consent decree and proposal. Further, Olin has had meetings with, and has submitted quarterly reports to, the review panel, established by the consent decree, to report its progress.

On January 11, 1983, plaintiffs filed a separate action for damages.³ In September 1983, plaintiffs first amended their complaint to demand injunctive relief, which was subsequently amended as follows:

Plaintiffs demand preliminary and final injunctive relief to require defendant Olin to remove any and all DDT and other contaminants on and in T.V.A. Property, Huntsville Spring Branch, Indian Creek, Wheeler National Wildlife Refuge, and the Tennessee River, immediately and in no event more than one year after the date of the Court Order and to require such other action by said defendant as the Court shall deem appropriate.

The injunctive facet of the case⁴ was severed, transferred to this court, and consolidated with the other Olin cases before the court by order of May 10, 1984.

Olin premises this motion, which is directed solely against the severed injunctive claim, on three arguments:

1. The actions brought by the United States and Alabama in the consolidated DDT cases were parens patriae actions, and the doctrine of res judicata bars the Wilhoite plaintiffs' injunctive claims.

2. The Whilhoite plaintiffs injunctive claims constitute an impermissible collateral attack on the consent decree entered in the consolidated DDT cases.

3. The Wilhoite plaintiffs' injunctive claims are untimely and barred by laches.

I

Olin argues that because Alabama and the United States brought a parens patriae action on behalf of its citizens, subsequent suits by individual citizens are barred by res judicata.

In order for res judicata to have a preclusive effect on subsequent actions, the following elements must be met:

(1) that the prior judgment must have been rendered by a court of competent jurisdiction;

(2) that there must have been a final judgment on the merits;

(3) that the parties, or those in privity with them, must be identical in both suits; and

(4) that the same cause of action must be involved in both suits.

Ray v. Tennessee Valley Authority, 677 F.2d 818, 821 (11th Cir.1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 788, 74 L.Ed.2d 994 (1983), quoting Stevenson v. International Paper Co., 516 F.2d 103, 108 (5th Cir.1975).

Plaintiffs cite several cases for the proposition that private plaintiffs are not barred from bringing a private enforcement action even though their interests were purportedly advanced by the United States in previous litigation that resulted in a consent decree, but plaintiffs cite no cases involving a prior parens patriae action. The weight of authority indicates that once a state represents all of its citizens in a parens patriae suit, a consent decree or final judgment entered in such a suit is conclusive upon those citizens and is binding upon their rights. Badgley v. City of New York, 606 F.2d 358 (2d Cir.1979), cert. denied, 447 U.S. 906, 100 S.Ct. 2989, 64 L.Ed.2d 855 (1980); Menzel v. County Utilities Corp., 501 F.Supp. 354 (E.D.Va. 1979).

Emphasizing that res judicata requires that there be a final judgment on the merits, plaintiffs assert that the consent decree of the prior litigation was merely a court-approved contractual settlement between the parties to that litigation and that the prior litigation did not result in a final judgment on the merits. The Eleventh Circuit, in a civil rights context, has stated the following:

The principles of res judicata and collateral estoppel apply to consent decrees as well as to ordinary judgments entered by a court. These doctrines prevent the attack of a prior judgment by parties to the proceedings or by those with sufficient identity of interests with such parties that their interests are deemed to have been litigated in those proceedings. A final judgment may not, however, bind a nonparty when his interests were not represented; thus, situations can arise where a judgment must not be applied to him. There are, additionally, limitations on the extent to which a nonparty can undermine a prior judgment. A nonparty may not reopen the case and relitigate the merits anew; neither may he destroy the validity of the judgment between the parties.

In applying these principles to consent decrees, some courts have raised a spector that any action having a burden, financial or otherwise, on a consent decree is an "impermissible collateral attack" on the decree. We do not follow this path to the extent that it deprives a nonparty to the decree of his day in court to assert the violation of his civil rights. (footnotes omitted).

United States v. Jefferson County, 720 F.2d 1511, 1517-18 (11th Cir.1983). In a proper paren patriae action, a state is deemed to represent all of its citizens, when the state is a party in a suit involving a matter of sovereign interest, and there is a presumption that the state will adequately represent the position of its citizens. Menzel, 501 F.Supp. at 357.

Plaintiffs argue that the consent decree by its own language mandates a denial of defendant's motion. Paragraph 46 of the consent decree provides that it does not "have any effect upon rights of persons or entities not parties to this consent decree." Plaintiffs assert that they are not barred by res judicata because they were neither parties to the consent decree entered in the earlier litigation nor in privity with the parties to the consent decree. Resolution of these arguments turn on whether the prior litigation was in fact a parens patriae suit and whether the Wilhoite plaintiffs, as citizens of...