Emhart Indus., Inc. v. U.S. Dep't of the Air Force
| Citation | 988 F.3d 511 |
| Decision Date | 17 February 2021 |
| Docket Number | No. 19-1563,19-1563 |
| Parties | EMHART INDUSTRIES, INC., Plaintiff/Third Party Plaintiff, Appellee, State of Rhode Island, by and through the Rhode Island Department of Environmental Management, Plaintiff, Appellee, v. UNITED STATES DEPARTMENT OF THE AIR FORCE, et al., Defendants/third Party Plaintiffs, Appellees, Black & Decker Inc., Third Party Plaintiff/Third Party Defendant, Appellee, CNA Holdings LLC, f/k/a CNA Holdings, Inc, et al., Third Party Defendants, Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
Bryan Killian, with whom Duke K. McCall, III, Douglas A. Hastings, Morgan, Lewis & Bockius LLP, Washington, DC, Dan Vineyard, Jennifer Caughey, and Jackson Walker LLP, Houston, TX, were on brief, for appellants CNA Holdings LLC, et al.
Joan M. Pepin, Attorney, Environment and Natural Resources Division, United States Department of Justice, with whom Jeffrey Bossert Clark, Assistant Attorney General, Eric Grant, Deputy Assistant Attorney General, Michael T. Gray, Attorney, Jerome W. MacLaughlin, Attorney, Washington, DC, Phillip R. Dupré, Attorney, Susan Forcier, Deputy Chief Legal Counsel, Rhode Island Department of Environmental Management, Joy Sun, Eve S. Vaudo, EPA Region 1 Office of General Counsel, Michael L. Casillo, Litigation Attorney, Air Force Legal Operations Agency, and Genifer M. Tarkowski, Attorney, Naval Litigation Office, were on brief, for appellees United States, et al.
Joseph W. Hovermill, with whom Joseph L. Beavers, Alexander P. Creticos, Baltimore, MD, Miles & Stockbridge P.C., Christopher A. Duggan, Lincoln, MA, H. Reed Witherby, and Smith Duggan Buell & Rufo LLP, Boston, MA, were on brief, for appellees Emhart Industries, Inc., et al.
Before** Barron, Circuit Judge, and Saris, District Judge.***
This is an appeal by three companies -- CNA Holdings LLC, Exxon Mobil Corporation, and Union Oil Company of California -- that seek to vacate a consent decree ("the Decree") to which they were not parties but that had been entered into by the U.S. Department of Defense, the U.S. Department of the Air Force, and the U.S. Department of the Navy ("the federal agencies"); Emhart Industries; the U.S. Environmental Protection Agency ("EPA"); and the State of Rhode Island. The Decree settled claims involving those parties under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") and Rhode Island law regarding the responsibility for, and the allocation of the costs of, the cleanup of a contaminated Superfund site located in North Providence, Rhode Island ("the Site"). But, the Decree also purported to do something of direct import for the appellants: bar their own CERCLA claims against Emhart and the federal agencies pertaining to the allocation of the costs of cleaning up the Site. In seeking to overturn the District Court's approval of the Decree, the appellants contend that it was improper as a matter of law and that, in any event, the District Court abused its discretion in approving it, because it failed meaningfully to review it before doing so. We disagree and thus affirm the District Court's ruling approving the Decree.
Beginning in the 1940s,1 Metro Atlantic (the corporate predecessor to Emhart Industries)2 manufactured textile chemicals on nine acres on a peninsula in North Providence, Rhode Island ("the Source Area"). Emhart Indus., Inc. v. New Eng. Container Co. (Phase I ), 130 F. Supp. 3d 534, 538, 541, 542 n.18 (D.R.I. 2015). During some of those years, the company produced hexachlorophene ("HCP") there, id. at 542, and, in the process of manufacturing it, released 2,3,7,8-tetrachlorodibenzo-p-dioxin ("2,3,7,8-TCDD") into the ground in the Source Area and the nearby Woonasquatucket River, id. at 540.
New England Container Company ("NECC") operated a business reconditioning 55-gallon drums on a portion of the Source Area beginning around 1952. Id. at 542, 547. Various entities, including Metro Atlantic and the Department of Defense, sent drums to NECC to be reconditioned. Id. at 547. The drums often contained residues of the chemicals that they had carried prior to their refurbishment. Id.
In 1996, the EPA discovered fish contaminated with dioxin in the Woonasquatucket River. Id. at 541. Of all the contaminants subsequently discovered at the Site, 2,3,7,8-TCDD was not only the most toxic dioxin but also one of the most toxic substances of any kind. Id. at 540 n.11.
In investigating the Site, the EPA identified the Source Area as the epicenter of the contamination. Id. at 541-42. In 1999 and 2000, the EPA issued notices of potential liability for that contamination to NECC and Emhart, respectively, as potentially responsible parties under section 107(a) of CERCLA. In 2000, moreover, the agency placed the Site, which consisted of a three-mile stretch of the Woonasquatucket River and the surrounding area, on its National Priorities List ("NPL") for cleanup under CERCLA. Id. at 541.
CERCLA "grants the President broad power to command government agencies and private parties to clean up hazardous waste sites." Key Tronic Corp. v. United States, 511 U.S. 809, 814, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994). The statute provides that when there is a "release or substantial threat of release" of "any hazardous substance," or "any pollutant or contaminant" that "may present an imminent and substantial danger to the public health or welfare," the EPA3 is authorized to "remove or arrange for the removal of, and provide for remedial action relating to such hazardous substance, pollutant, or contaminant at any time ... or take any other response measure consistent with" the statutory scheme. 42 U.S.C. § 9604(a)(1).
Sites for which the EPA has determined that the need for such a response action is "urgen[t]" are listed on the NPL. See 42 U.S.C. § 9605(a)(8)(A)-(B) ; United States v. Gen. Elec. Co., 670 F.3d 377, 381 n.3 (1st Cir. 2012) ; Bd. of Regents of Univ. of Wash. v. EPA, 86 F.3d 1214, 1217 (D.C. Cir. 1996). The NPL must be "revise[d] ... no less often than annually." 42 U.S.C. § 9605(a)(8)(B).
To select a response action for a site, the EPA conducts both a remedial investigation and a feasibility study. See 40 C.F.R. § 300.430(a)(2) ; Carson Harbor Vill., Ltd. v. County of Los Angeles, 433 F.3d 1260, 1267-68 (9th Cir. 2006) ; see also CPC Int'l, Inc. v. Northbrook Excess & Surplus Ins. Co., 962 F.2d 77, 79 (1st Cir. 1992) (). In the remedial investigation phase, the EPA evaluates the need for a response action and collects the information necessary to assess the possible response actions that could be taken. 40 C.F.R. § 300.430(d)(1).
The EPA is required to select a response action that is "protective of human health and the environment," will "maintain protection over time," and will "minimize untreated waste." Id. § 300.430(a)(1)(i). To that end, the EPA conducts a feasibility study that, based on the data gathered in the remedial investigation, assesses possible response actions against a range of criteria, including cost, complexity, environmental impact, benefits to human health, and state and community buy-in. See id. § 300.430(e)(7), (9).
In that study, the EPA identifies a preferred response action and opens it to public comment. See id. § 300.430(f)(1)(ii). Based on the public comments that the EPA receives and its own analyses, the EPA then selects a response action. Id. § 300.430(f)(4)(i). The EPA also at that point compiles the documents that formed the basis for its selection of the response action in an administrative record that includes the Record of Decision ("ROD"). Id. §§ 300.430(f)(5)(i), 300.800(a).
The response action that the EPA selects can be carried out by the EPA itself; alternatively, the EPA can order "responsible parties" under section 107(a) of CERCLA to carry it out. Key Tronic Corp., 511 U.S. at 813-14, 114 S.Ct. 1960 ; see also 42 U.S.C. § 9607(a). CERCLA addresses how the costs of carrying out the response action may be allocated among responsible parties.
For "four broad classes" of responsible parties, including any corporation "who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of," "CERCLA imposes strict liability for environmental contamination." Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 608-09, 608 n.5, 129 S.Ct. 1870, 173 L.Ed.2d 812 (2009) (quoting 42 U.S.C. § 9607(a) ). Moreover, CERCLA provides that any given responsible party can be held liable by the EPA for the entire cost of carrying out the response action. Id. at 614-15, 129 S.Ct. 1870.
Where there are multiple responsible parties, however, a "CERCLA defendant[ ] seeking to avoid joint and several liability bear[s] the burden of proving that a reasonable basis for apportionment exists." Id. at 614, 129 S.Ct. 1870. In addition, even where the harm is not susceptible to apportionment, CERCLA "permit[s] ... private parties [who are themselves responsible parties] to recover cleanup costs and seek contribution from [other] responsible parties" for carrying out the response action. City of Bangor v. Citizens Commc'ns Co., 532 F.3d 70, 90 (1st Cir. 2008).
Specifically, a responsible party may seek cost recovery under section 107, see 42 U.S.C. § 9607, or contribution under section 113, see 42 U.S.C. § 9613, against any other responsible party. Section 107(a) "allows for full recovery of costs," United States v. Davis, 261 F.3d 1, 29 (1st Cir. 2001), by a responsible party from other responsible parties, unless the harm can be apportioned in a manner that would preclude such full recovery, Burlington N. & Santa Fe Ry. Co., 556 U.S. at 614-15, 129 S.Ct. 1870. Section 113(f)(1), by contrast, allows a responsible party to seek contribution from other responsible parties for costs incurred in carrying out a response action...
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