982 F.2d 1436 (10th Cir. 1992), 90-6325, United States v. Hardage

Docket Nº:90-6325.
Citation:982 F.2d 1436
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Royal N. HARDAGE; Special Master; Oklahoma National Stockyards Company; Joc Oil; Dal-Worth, Industries; Double Eagle; Samuel Bishkin, Doing Business as Eltex Chemical; L & S Bearing Company; Kerr-McGee Corporation; Cato Oil; Powell Sanitation Service, Inc.; Lowe Chemical; Monsanto; Textron Inc., Defe
Case Date:December 21, 1992
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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982 F.2d 1436 (10th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,


Royal N. HARDAGE; Special Master; Oklahoma National

Stockyards Company; Joc Oil; Dal-Worth, Industries;

Double Eagle; Samuel Bishkin, Doing Business as Eltex

Chemical; L & S Bearing Company; Kerr-McGee Corporation;

Cato Oil; Powell Sanitation Service, Inc.; Lowe Chemical;

Monsanto; Textron Inc., Defendants.




Allied-Signal, Inc.; American Telephone & Telegraph

Company; Ashland Oil Inc.; Atlantic Richfield Company;

Borg-Warner Corporation; Bridgestone/Firestone, Inc.,

Formerly Known as the Firestone Tire & Rubber Company; Bull

HN Information, Formerly Honeywell Bull Inc.; Exxon

Corporation; Gencorp Inc., (Diversitech General); Magnetic

Peripherals, Inc.; Maremont Corporation; McDonnell-Douglas

Corporation; Mobil Chemical Company; Nalco Chemical

Company; Oklahoma Gas and Electric Company; The Oklahoma

Publishing Company; Rockwell International Corporation,

Formerly Known as, North American Rockwell; Texaco Refining

and Marketing, Inc.; Texas Instruments Incorporated; UOP

Inc.; Uniroyal Inc.; Westinghouse Electric Corporation;

Weyerhaeuser, Third-party-defendants-Appellants,

A.H. Belo, Doing Business as Dallas Morning News,


American Airlines, Inc.; Baxter Health Care Corp., Doing

Business as Pharmaseal Laboratories; Benjamin Moore &

Company; Bob McBroom, Doing Business as American Furniture

Stripping; Brown & Root, Inc.; Browning-Ferris, Inc.,

Formerly Known as Colt Industries Inc., Doing Business as

Holly Specialty Products; Continental Industries Inc.;

Crown Industries, Also Known as Crown Transport Co. (Geo

International); Desoto, Inc.; Deluxe Corporation, Doing

Business as Deluxe Check Printers, Inc.; Diffee Motor Co.,

Inc.; Engineering Enterprises, Inc.; First National

Management, Also Known as First Oklahoma Corp., Formerly

Known as First Oklahoma Bancorp, Inc.; Fruehauf Corporation

(Hobbs & Kelsey Hayes Divisions); Halliburton Services, a

Division of Halliburton Company; Interstate Truck Repair;

Maclanburg-Duncan Company; McAlester Public Schools; OK

Graphics; Oklahoma Natural Gas Company; Presbyterian

Hospital, Inc. Doing Business as Presbyterian Health

Foundation; Safety-Kleen Corporation; Shaklee Corporation;

Sooner Ford; Southwestern Steel Rolling Door Company; the

Agriculture & Nutrition Company; Thomas & Betts

Corporation; Unisys Corporation, Formerly Known as Sperry

Corporation, Doing Business as Sperry-Vickers; the

University of Oklahoma; W.O.L. Corporation, also Known as

Wolverine Pipe; Webco Industries, Inc., Doing Business as

Southwest Tube Manufacturing Company; Welch Enterprises,

Inc., also Known as Welch Oil, Fourth Party Defendants-Appellants.

No. 90-6325.

United States Court of Appeals, Tenth Circuit

December 21, 1992

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[Copyrighted Material Omitted]

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Terry W. Schackmann of Spencer Fane Britt & Browne, Kansas City, MO (Jerome T. Wolf, Carl H. Helmstetter, Spencer Fane Britt & Browne, Jeffrey N. Martin, Hunton & Williams, Washington, DC, Kenneth N. McKinney, Robert D. Tomlinson, Robert L. Roark, McKinney, Stringer & Webster, Oklahoma City, OK, with him on the brief), for Hardage Steering Committee, et al.

John T. Stahr, Atty., Environmental and Natural Resources Div., Dept. of Justice, Washington, DC (Richard B. Stewart, Asst. Atty. Gen., David C. Shilton, Steven Novick, Gary S. Guzy, Attys., Environmental and Natural Resources Div., Dept. of Justice, Washington, DC, Charles De Saillan, Atty., Office of Enforcement, E.P.A., Washington, DC with him on the brief), for U.S.

Before TACHA, and BALDOCK, Circuit Judges, and BROWN, District Judge. [*]

BALDOCK, Circuit Judge.

This case arises from the cleanup effort at the Hardage Superfund Site (Hardage site), a federally controlled Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) site near Criner, Oklahoma. CERCLA § 101 et seq., 42 U.S.C. § 9601 et seq. Third-party-defendants Hardage Steering Committee, et al (HSC) appeal from the district court's December 8, 1989 order granting, in part, the United States' motion for partial summary judgment and declaratory judgment on response cost issues, United States v. Hardage, 733 F.Supp. 1424 (W.D.Okla.1989), and

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the district court's August 9, 1990 order entering Findings of Fact and Conclusions of Law for Remedy Selection Phase, United States v. Hardage, 750 F.Supp. 1460 (W.D.Okla.1990).

In 1986, the government filed this action against thirty-two generators and three transporters seeking injunctive relief under CERCLA § 106(a), 42 U.S.C. § 9606(a), to require them to clean up the Hardage site, and to recover costs incurred by the government under CERCLA § 107(a)(4)(A), 42 U.S.C. § 9607(a)(4)(A). Most of these original defendants organized themselves as HSC defendants. HSC stipulated to liability for the presence of toxic waste at the Hardage site. The district court bifurcated the case into a remedy phase, at which a remedy for the cleanup of the Hardage site would be selected, and a liability phase, at which liability for the cleanup would be determined for those who did not stipulate to liability. Prior to the remedy phase of the trial, the government moved for partial summary judgment against HSC to recover response costs it incurred at the Hardage site. The district court granted the government's motion for all direct response costs and denied summary judgment for the government's indirect response costs. At the same time, the court granted the government's request for a declaratory judgment that HSC was liable for all of the government's future response costs. The district court entered this order prior to the commencement of the remedy phase of the trial.

At the remedy phase of the trial, the government and HSC presented the court with competing remedies. The court ultimately rejected the government's remedy and ordered implementation of HSC's remedy, with minor modifications. At the remedy phase the court also awarded the government its indirect response costs and additional direct response costs against HSC. The court awarded HSC only a portion of the response costs it counterclaimed against the government as a responsible party. 1

HSC appeals the district court's entry of partial summary judgment for the government on two grounds. First, HSC contends that the court erred in granting partial summary judgment, holding it liable for the government's direct response costs, because of the existence of genuine issues of material fact. Second, HSC contends that summary judgment should be reversed because the court ultimately determined, during the remedy phase of the trial, that the government's trial remedy was inconsistent with the National Contingency Plan (NCP). HSC also contends that the declaratory judgment in favor of the government, holding that HSC is liable for all future government response costs, must be reversed because it does not allow HSC to contest these response costs as inconsistent with the NCP. Lastly, HSC appeals the district court's denial of certain HSC response costs, claiming that the court erroneously applied CERCLA § 122(e)(6), 42 U.S.C. § 9622(e)(6), to its claim for costs, and that the court disallowed certain HSC response costs based on the erroneous presumption that private parties may not recover litigation-related response costs. All issues have been certified under Fed.R.Civ.P. 54(b) for interlocutory review, and we exercise jurisdiction pursuant to 28 U.S.C. § 1291.


Defendant Royal N. Hardage owned and operated the Hardage waste disposal site. The site operated from September 1972 until November 1980, receiving more than twenty million gallons of waste for storage and/or disposal. In 1979, the Environmental Protection Agency (EPA) investigated and inspected the site and concluded that the site posed a threat to the public health, welfare, and environment. In September 1980, the United States Department of Justice (DOJ) filed suit in United States v. Hardage, No. CIV-80-1031-W (W.D.Okla.

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filed Sept. 8, 1980) [hereinafter Hardage I] against Mr. Hardage, the site owner.

In Hardage I, the court found that the Hardage site was dangerous and determined that Mr. Hardage was liable under the Resource Conservation and Recovery Act § 7003, 42 U.S.C. § 6973, and CERCLA § 106, 42 U.S.C. § 9606. The court also awarded the government partial judgment for its response costs incurred through December 1982. The government was unable to obtain payment from Mr. Hardage, however, because he filed for bankruptcy and received a discharge of indebtedness in June 1985. Thereafter, the government identified numerous other parties responsible for the contamination of the site, and notified them of their status as Potentially Responsible Parties (PRP's) pursuant to CERCLA § 104, 42 U.S.C. § 9604. In June 1986, the government filed the instant action, United States v. Hardage, No. CIV-86-1401-P (W.D.Okla. filed June 25, 1986) [hereinafter Hardage II] against the identified PRP's, the majority of whom ultimately formed HSC, to require them to clean up the Hardage site, and to recover response costs incurred by the government.

Throughout the proceedings in Hardage I and prior to the remedy phase of Hardage II, the EPA continued to investigate and study the Hardage site to develop an appropriate remedy, eventually settling on the remedy it presented at trial. Beginning in 1986, HSC also became involved with the cleanup of the site, instituting...

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