982 F.2d 1491 (10th Cir. 1993), 91-6186, United States v. Hardage

Docket Nº:91-6186.
Citation:982 F.2d 1491
Party Name:UNITED STATES of America, Plaintiff-Amicus Curiae, v. Royal N. HARDAGE Defendant. HARDAGE STEERING COMMITTEE Defendant-Appellee, v. JOC OIL, EXPLORATION; 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; Mons
Case Date:January 06, 1993
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
FREE EXCERPT

Page 1491

982 F.2d 1491 (10th Cir. 1993)

UNITED STATES of America, Plaintiff-Amicus Curiae,

v.

Royal N. HARDAGE Defendant.

HARDAGE STEERING COMMITTEE Defendant-Appellee,

v.

JOC OIL, EXPLORATION; 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.; PPG Industries; A.H. Belo, doing business as

Dallas Morning News; Acme Fence & Iron Co.; Alamo Group

Texas, Inc.; AAR Oklahoma, Inc.; Aircraftsman, Inc.;

Agnew Auto Parts; American National Can Corporation;

Anadite, Inc.; Arrow Tank Trucks; Aztec Manufacturing;

Arrow Industries; Aviall of Texas, Inc.; BASF; Betz

Laboratories, Inc.; Blanks Engraving; Beazers Materials;

Blackwell Zinc Company, Inc.; Broadway Machine & Motor

Supply, Inc.; The Bucket Shop, Inc.; Charles Machine

Works, Inc.; Container Supply Inc.; Carnation Company;

Container Corp. of America; Continental Can Company, Inc.;

Cook Paint & Varnish Company; CTU of Delaware; Country

Home Meat Company; Dart Industries; Delta Faucet Company;

Dow Chemical Company; Del Paint Corporation; Dixico, Inc.;

Downtown Airpark, Inc.; Drilex Systems, Inc.; Dubois

Chemicals, Inc.; Dresser Industries, Inc.; Drillers Engine

& Supply, Inc., Dura Chrome; Fisher Controls; GAF; E C

Industries; Fred Jones Manufacturing Company; General

Dynamics; General Motors Corporation; Glidden Company;

SCM Corporation; Groendyke Transport, Inc.; General Electric

Company; Goodyear Tire and Rubber, Inc.; H.W. Allen

Hudiberg Chevrolet; Ingersoll-Rand Oilfield Products

Company; Hinderliter Tool; ICO, Inc., formerly known as

Rodco, Inc.; Johnson & Johnson Medical, Inc.; Ortho

Pharmaceutical Corp.; Johnson-Johnson Hospital; Surgikos,

Inc.; Kelly Moore Paint; Kerr Glass Manufacturing;

Laidlaw Waste; W.J. Lamberton; Master Motor Rebuilders,

Inc.; Fixture Morris Company; Madix; George McKiddie,

doing business as Capitol Grease Co.; Motorolla; Northrop

Worldwide Aircraft, doing business as Earl D. Mills;

Packaging Corporation of America; The Oklahoma Publishing

Company Parker-Hannifin Corp.; Printpack, Inc.; Procter &

Gamble Manufacturing Co.; Quebecor Printing; Maxwell

Communication; Riverside Press; Reliance Universal, Inc.;

Rohm & Haas Rotex Corporation; Sherwin Williams Company

Star Manufacturing; Sermatech; Southwest Electric Company;

Stearns & Foster Bedding; Susan Crane; Trigg Drilling

Company; Sublett & Associates, Inc.; Teccor Electronics;

TRW, Inc.; Turbodel; United Plating Works, Inc.; Valley

Steel Products Company; Unit Parts Company; United States

Corporation; United State Pollution Control, Inc.; Van Der

Horst USA; Waste Management of Oklahoma; Western Uniform &

Towel Service; Zoecon Corporation; Xerox, Third-Party Defendants,

and

Jones-Blair Co.; O'Brien Corporation;

Third-Party-Defendants-Appellants,

No. 91-6186.

United States Court of Appeals, Tenth Circuit

January 6, 1993

Page 1492

Arthur A Schulcz (Timothy L. Harker, with him on the brief), of The Harker Firm, Washington, DC, for third-party-defendants-appellants.

Jeffrey N. Martin (Hether C. Macfarlane, with him on the brief), of Hunton & Williams, Washington, DC, for defendant-appellee.

Roger B. Clegg, Deputy Asst. Atty. Gen., Dept. of Justice, Washington, DC (Barry M. Hartman, Acting Asst. Atty. Gen., David C. Shilton, Anna L. Wolgast, John T. Stahr, Attys., Environmental and Natural Resources Div., Dept. of Justice, Charles De Saillan, Atty., Office of Enforcement, E.P.A., with him on the brief), for U.S. as amicus curiae.

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

Page 1493

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 §§ 101-405, 42 U.S.C. §§ 9601-9675. Third-party-defendants The O'Brien Corporation and Jones-Blair Company (Appellants) appeal from the district court's September 22, 1989 order approving a consent decree for de minimis settlement, and the district court's April 2, 1991 order enforcing a settlement between Appellants and Defendant-Appellee Hardage Steering Committee (HSC). Also before the court is HSC's motion to dismiss this appeal for lack of jurisdiction.

In 1986, in an effort to clean up the Hardage site, the government filed suit against thirty-two waste generators and three waste transporters seeking injunctive relief under CERCLA § 106(a), 42 U.S.C. § 9606(a), to require them to clean up the site, and to recover costs incurred by the government under CERCLA § 107(a), 42 U.S.C. § 9607(a). 1 Most of these original defendants organized themselves as HSC defendants and stipulated to liability for the presence of hazardous waste at the Hardage site. Appellants were not sued by the government, however, in 1987, HSC filed a third-party complaint against Appellants as parties also liable for waste generation at the site. Appellant's waste volumes 2 qualified them as de minimis parties under CERCLA § 122(g), 42 U.S.C. § 9622(g).

On April 7, 1989, the government submitted a de minimis consent decree to the district court for approval. The consent decree embodied a CERCLA § 122(g), 42 U.S.C. § 9622(g), de minimis settlement reached with Appellants and 177 other de minimis parties. The district court conducted a hearing on the proposed de minimis consent decree on September 22, 1989, and entered an order approving the decree. At the hearing on the motion for entry of the consent decree, the court distinguished a contribution claim from a response cost claim under CERCLA, and determined that the de minimis settlement did not release the de minimis settlors from potential liability to HSC for its response costs. 3 On November 28, 1990 the district court found that Appellants were liable parties under CERCLA § 107(a) as generators of hazardous waste at the Hardage site. 4

HSC's response cost claim against all third-party defendants was scheduled to proceed to trial on...

To continue reading

FREE SIGN UP