In re Acushnet River & New Bedford Harbor Proceed.

• Citation: 712 F. Supp. 994
• Decision Date: 27 February 1989
• Docket Number: Civ. A. No. 83-3882-Y.
• Court: U.S. District Court — District of Massachusetts
• Parties: In re ACUSHNET RIVER & NEW BEDFORD HARBOR: PROCEEDINGS RE ALLEGED PCB POLLUTION.

712 F. Supp. 994

In re ACUSHNET RIVER & NEW BEDFORD HARBOR: PROCEEDINGS RE ALLEGED PCB POLLUTION.

Civ. A. No. 83-3882-Y.

United States District Court, D. Massachusetts.

February 27, 1989.

Ellen M. Mahan, William D. Brighton, Environmental Enforcement Section, Land and Natural Resources Div., Washington, D.C., and Martha Sosman, Chief, Civil Div., U.S. Attys. Office, Boston, Mass., for U.S.

Lee Breckenridge, Chief, and Nancy Preis, Asst. Attys. Gen., Environmental Protection Div., Dept. of the Atty. Gen., Boston, Mass., for Com. of Mass.

Charles C. Bering, Office of Regional Counsel, U.S. EPA—Region I, Boston, Mass., and Alice Crowe, OECM—Waste, LE 134S, Washington, D.C., for U.S.E.P.A.

Hugh Schratwieser, Office of General Counsel, Washington, D.C., for Nat. Oceanic and Atmospheric Admin.

Daniel J. Gleason, Mary K. Ryan and Brian T. Kenner, Nutter, McClennan & Fish, Boston, Mass., for AVX Corp.

Paul B. Galvani and Roscoe Trimmier, Jr., Ropes & Gray, Boston, Mass., for Aerovox, Inc.

David A. McLaughlin and Michael J. McGlone, McLaughlin & Folan, New Bedford, Mass., for Belleville Industries, Inc.

Verne Vance, Jr., and Richard W. Benka, Foley, Hoag & Eliot, Boston, Mass., for Cornell Dubilier Electronics Co., Inc.

John R. Quarles and Howard T. Weir, Morgan, Lewis & Bockius, Washington, D.C., for Federal Pacific Elec. Co.

Robert J. Muldoon, Jr., Daniel B. Winslow and Barbara O'Donnell, Sherin & Lodgen, Boston, Mass., for Aerovox, Inc. (Ins. Litigation).

William M. Savino and Gary D. Centola, Rivkin, Radler, Dunne & Bayh, Uniondale, N.Y., Cynthia J. Cohen and Michael B. Bogdanow, Meehan, Boyle & Cohen, Boston, Mass., for Firemen's Fund Ins. Co.

James L. Ackerman, Day, Berry & Howard, Boston, Mass., and Thomas J. Groark, Jr., Day, Berry & Howard, Hartford, Conn., for Aetna Cas. and Sur. Co.

John P. Ryan, Sloan & Walsh, Boston, Mass., for Hartford Ins. Co.

Michael S. Greco and Lisa D. Campolo, Hill & Barlow, Boston, Mass., and Timothy C. Russell and T. Andrew Culbert, Drinker, Biddle & Reath, Washington, D.C., for Lumbermen's Mut. Cas. Co. and American Motorists Ins.

Stephen J. Paris and Michael F. Aylward, Morrison, Mahoney & Miller, Boston, Mass., for CNA Ins. Co. and Reliance Ins. Co.

Roger E. Warin, Stephen A. Fennell and Anita G. Raby, Steptoe & Johnson, Washington, D.C., for Highlands Ins. Co. Wm. Gerald McElroy, Jr. and John T. Harding, Jr., Zelle & Larson, Waltham, Mass., for Employers Ins. of Wausau.

James P. Whitters, III, Gaston & Snow, Boston, Mass., for Liberty Mutual Ins. Co.

Bert J. Capone and Deborah S. Griffin, Peabody & Arnold, Boston, Mass., for Home Ins. Co. and Lexington Ins. Group.

Robert F. Corliss and Robert A. Romero, Jr., Corliss & Romero, Boston, Mass., and Mary Ann D'Amato and Paul Moran, Mendes & Mount, New York City, for Underwriters at Lloyd's.

Pamela C. Slater and Allan E. Taylor, Taylor, Anderson & Travers, Boston, Mass., for First State Ins. Co.

Timothy P. Wickstrom, Tashjian, Simsarian & Wickstrom, Worcester, Mass., for Mission Ins. Co.

Calum B. Anderson, Parker, Coulter, Daley & White, Boston, Mass., for Northbrook Excess & Surplus Ins. Co.

Carl K. King and Gayle M. Merling, Goldstein & Manello, Boston, Mass., for EPEC, Inc.

David P. Rosenblatt, Burns & Levinson, Boston, Mass., for Plating Technologies.

Erik D. Olson, Counsel, Nat. Wildlife Federation, Washington, D.C., for Nat. Wildlife Federation.

MEMORANDUM OF DECISION

YOUNG, District Judge.

This memorandum continues the legal discussion commenced in Acushnet River and New Bedford Harbor: Proceedings Re Alleged PCB Pollution, 675 F.Supp. 22 (D.Mass.1987). The first opinion dealt primarily with the parties in these related actions and discussed the jurisdiction of the Court, the propriety of the actions commenced by the United States and the Commonwealth of Massachusetts (the "sovereigns"), and the capacity of one of the defendants Belleville Industries, Inc. ("Belleville") to sue and be sued.

With these matters squared away, it is appropriate to turn to the manner in which the trial will actually be conducted, specifically the right to a trial by jury.

I. Background of the Jury Claim

It is clear that Congress, in enacting the Comprehensive Environmental Compensation and Liability Act ("CERCLA"), did not statutorily provide individuals charged under its provisions with a right to a jury trial. Congress has given the executive branch sweeping administrative powers to identify environmentally hazardous waste sites and administratively to assess clean up costs against the widest array of responsible parties. 42 U.S.C. sec. 9607. Indeed, it would appear that Congress desired judicial involvement kept to a minimum. In broad brush, CERCLA enforcement proceedings ought normally progress through an administrative stage in which an environmental hazard is identified, a cost effective plan adopted to deal with it, and those costs assessed against the responsible parties. 42 U.S.C. sec. 9601 et seq. In part, the judicial power comes into play if there is a dispute as to who the responsible parties are, if the responsible parties fail to own up or if, after the clean up takes place, injury to natural resources remains despite the clean up and a settlement cannot be reached. Id.¹

In theory, that is the way this case should have been handled. In practice, the sovereigns here have not paid the remotest heed to this natural progression. Instead, admittedly concerned about the loss of rights under the three-year statute of limitations embodied in CERCLA's original form, 42 U.S.C. sec. 9612(d), they commenced this litigation on December 10, 1983, without any prior notice to the parties allegedly liable. See In re Acushnet River, 675 F.Supp. at 26. Such litigation was commenced at a time when it was not known whether any clean up of the Acushnet River and New Bedford Harbor was feasible or, if feasible, what form it would take and, indeed, well before the promulgation of the regulations governing the determination of an approach to clean up and the assessment of clean up costs.² Even so, the sovereigns sought by this litigation both clean up costs and natural resource damages as well as recovery under a host of related environmental statutes. In re Acushnet River, 675 F.Supp. at 25-26.

Not surprisingly, but for preliminary skirmishing, this litigation languished until these related cases were among the oldest and most stale on the Court's docket. In 1985, the Court intervened and attempted to move the cases to trial. "Impossible," said all the litigants but Belleville, "why, given the snail's pace at which our society has come to accept administrative determinations, it may be years before the most effective way to clean the harbor up and a cost assessment associated with such clean up can be ascertained, thus allowing this litigation to proceed."³ Belleville, however, took an independent tack, arguing that, as the litigation was then (in 1985) next in line for trial, the Court ought simply call the case and, when the sovereigns proved unable to go forward with proof of their charges, ought dismiss the litigation with prejudice for want of prosecution. The Court demurred, considering it an abuse of discretion to impose a substantive result upon the fortuity that the Court had suddenly turned its attention to the case.

Balked at such a quick disposition of this action, Belleville reminded the Court that it sought a trial by jury as to the disputed factual issues raised herein. Given the overlapping factual nexus of these cases, any jury issue must necessarily be resolved first so that the jury's factual determinations may control the findings of this Court in equity. Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510-11, 79 S.Ct. 948, 956-57, 3 L.Ed.2d 988 (1959). Although only Belleville had claimed a right to a trial by jury in these related actions, the sovereigns and the other parties have treated Belleville's claim as though it were made in each of the related substantive actions. (Docket Nos. 83-3882, 83-3899.)⁴ The sovereigns, however, framed a thoughtful motion to strike Belleville's jury demand in its entirety. On March 27, 1986, after argument, the Court denied this motion from the bench in what has come to be known familiarly in the First Circuit as an ore tenus decision.⁵ The Court's ruling was limited to natural resource damage claims under 42 U.S.C. sec. 9607(a)(4)(C). The other aspects of the motion were taken under advisement. This opinion sets out the Court's decision as to the right to a jury trial with respect to each of the claims made.

II. Jury Trial as of Right — Federal Claims

The Seventh Amendment provides that in "suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." The Amendment does not create, but only preserves jury trial rights. It is often said that the right preserved is the right to a jury trial as it existed in 1791, the year in which the Seventh Amendment was adopted. See Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657, 55 S.Ct. 890, 891, 79 L.Ed. 1636 (1935); Curtis v. Loether, 415 U.S. 189, 193, 94 S.Ct. 1005, 1007, 39 L.Ed.2d 260 (1974). But that does not mean the right is limited to recognized common law forms of action. Instead, the Supreme Court has interpreted "common law" to mean:

Not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies administered.... In a just sense, the amendment then may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever might be the peculiar form which they may assume to settle legal rights.

Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 447, 7 L.Ed. 732 (1830) (Story, J.) (emphasis added).

Justice Story's...