U.S. v. Hardage
| Citation | 982 F.2d 1491 |
| Decision Date | 06 January 1993 |
| Docket Number | No. 91-6186,91-6186 |
| Parties | , 23 Envtl. L. Rep. 20,630 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 A |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
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. *
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 March 27, 1991. Prior to this date, all other third-party defendants except Appellants and Cook Paint & Varnish Company (Cook Paint), a non-de minimis third-party defendant, settled with HSC. On the morning of March 27, 1991, Cook Paint settled with HSC. The district court also determined that Appellants, through third-party defendant liaison counsel Mr. William Conger, had also settled with HSC. The court thereafter entered the April 2, 1991 order enforcing the settlement between Appellants and HSC.
On appeal, Appellants raise the following issues: (1) that the court erred in enforcing the settlement agreement between Appellants and HSC, (2) that the district court erred in interpreting CERCLA § 122(g) to allow HSC's response cost claims against Appellants to survive the de minimis consent decree, (3) that the court erred in refusing to evaluate Appellant's request for relief based upon HSC's apparent misrepresentation to the court as to the size and nature of its response costs claims, and (4) that the court erred by refusing to rule on its summary judgment motions. HSC's motion to dismiss this appeal for lack of jurisdiction is also before this court.
We first address HSC's motion to dismiss this case for lack of jurisdiction. HSC initially claimed that Appellants lacked a final appealable order when they filed their notice of appeal. Although HSC appears to have since conceded that there is now a final judgment over which we have jurisdiction, we address this issue because the threshold question for the court is always its jurisdiction. Tosco Corp. v. Hodel, 804 F.2d 590, 591 (10th Cir.1986) (per curiam).
On April 29, 1991, Appellants filed a notice of appeal. At this time, Appellants had not obtained a Fed.R.Civ.P. 54(b) certification 5 and the multiple claim, multiple party litigation was ongoing. On May 17, 1991, HSC filed a motion to dismiss for lack of jurisdiction pointing out the lack of a final judgment in this case as required by 28 U.S.C. § 1291. On May 21, 1991 we issued an order, pursuant to Lewis v. B.F. Goodrich, 850 F.2d 641 (10th Cir.1988) (en banc), requiring Appellants to obtain either Rule 54(b) certification or a final judgment within thirty days. United States v. Hardage, No. 91-6186 (10th Cir. May 21, 1991) Appellants responded on June 3, 1991, arguing that the two issues raised on appeal satisfied the collateral-order exception doctrine to the final-decision rule of § 1291. Appellants also applied to the district court for Rule 54(b) certification. On June 17, 1991, the district court denied Appellant's request for Rule 54(b) certification, and, upon the expiration of the thirty days, no final judgment was obtained. HSC then renewed its motion before this court to dismiss for lack of jurisdiction. Thereafter, on October 28, 1991, prior to oral argument, the district court granted Appellants Rule 54(b) certification. Appellants did not file a new notice of appeal after obtaining Rule 54(b) certification. As of this date, the multiple claim, multiple party litigation remains ongoing in the United States District Court for the Western District of Oklahoma. The issue here is whether the belated Rule 54(b) certification obtained by Appellants ripens the premature notice of appeal as of the date of certification, thereby granting us jurisdiction over the appeal.
In Lewis, the plaintiff appealed a grant of summary judgment before a counterclaim between the parties had been adjudicated. However, before this court dismissed the case for lack of a final appealable order, the pending counterclaim was dismissed. This court stated that in a situation "in which the other claims were effectively dismissed after the notice of appeal was filed, we believe Fed.R.App.P. 4(a)(2) permits the interpretation that the notice of appeal, filed prematurely, ripens and saves the appeal." Lewi...
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