Kennedy Bldg. Associates v. Cbs Corp.

• Decision Date: 18 August 2009
• Docket Number: No. 07-3622.,07-3622.
• Citation: 576 F.3d 872
• Parties: KENNEDY BUILDING ASSOCIATES, Plaintiff-Appellant, v. CBS CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

576 F.3d 872

KENNEDY BUILDING ASSOCIATES, Plaintiff-Appellant, v. CBS CORPORATION, Defendant-Appellee.

No. 07-3622.

United States Court of Appeals, Eighth Circuit.

Submitted: October 15, 2008.

Filed: August 18, 2009.

George Gregory Eck, argued, Michael R. Drysdale, on the brief, Minneapolis, MN, for appellant.

David Horan, argued, Dallas, TX, Glen D. Nager, Washington DC, Delmar R. Ehrich, Minneapolis, MN, on the brief, for appellee.

Before BYE, JOHN R. GIBSON, and SMITH, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

In Kennedy Building Associates v. CBS Corporation (Kennedy II), 476 F.3d 530 (8th Cir.2007), we remanded in part for modification of the district court's injunction, asking the district court to determine which requirements of the Minnesota Decision Document were necessary to accomplish the goals of the Minnesota Environmental Rights Act (MERA). Minn.Stat. § 116B.01 et seq. The district court's modified injunction states that CBS has "substantially complied" with the Minnesota Decision Document and imposes no additional requirements. Kennedy appeals. Kennedy also argues that the district court's order denying its requests to increase the amount of the performance bond posted by CBS and for post-judgment response costs was in error. We affirm in part and vacate and remand in part.

I.

In our previous decisions, Kennedy Building Associates v. Viacom, Inc. (Kennedy I), 375 F.3d 731 (8th Cir.2004) and Kennedy II, 476 F.3d 530 (8th Cir.2007), we have detailed the history of the Kennedy Building site. The property was previously owned by Westinghouse, which operated an electrical transformer repair facility there. These operations led to significant contamination of the building, surrounding soil, and groundwater with polychlorinated byphenyls (PCBs) and chlorobenzenes, which are hazardous substances. Westinghouse was "virtually certain" that there was PCB contamination on the property. Despite this knowledge, Westinghouse sold the site to Hillcrest Development Company in 1980 without disclosing the probable contamination. In 1982, Gerald Trooien, a partner in Kennedy Building Associates, bought the property and transferred it to Kennedy.

In 1997, Kennedy discovered the contamination. Kennedy reported the contamination to the Minnesota Pollution Control Agency (the Agency) and began further investigations and clean-up of the site. Kennedy then brought suit against CBS, the successor in interest to Westinghouse.¹ The district court found CBS liable under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Minnesota Environmental Response and Liability Act (MERLA). The court awarded Kennedy $106,393.23 in statutory response costs and issued a declaratory judgment of liability for future response costs, which CBS did not appeal.² See Kennedy I, 375 F.3d at 735. The court also issued an injunction under MERA, requiring CBS to clean up the contamination at the site. CBS appealed the injunction, and we reversed and remanded "for more precise definition of the specific acts required of [CBS]" and to limit its scope to only that relief authorized by MERA.³ Id. at 748.

Before the Kennedy I proceedings, CBS entered into a consent order with the Agency that would lead to the development and implementation of a Response Action Plan (Plan) to clean up pollution at the Kennedy Building site. On remand from Kennedy I, the district court held the case in abeyance for the development of the Plan. Kennedy participated in the comment process. Relevant to this appeal, Kennedy commented that absent the removal of all contaminated soils from the site, "the asphalt cap will have to be maintained indefinitely to prevent water infiltration." Kennedy specifically objected to the inclusion of permeable, unpaved islands in the parking lot plans submitted by CBS. The Agency considered this comment and responded that any concern regarding residual contamination would be addressed by monitoring. Further, it explained that "replacement of the asphalt surface is not an integral part of the remedial action; it is solely for the purpose of Site restoration." At the end of the administrative process, the requirements of the Plan were laid out in the Minnesota Decision Document (Decision Document) issued by the Agency. The Plan required CBS to perform site preparation and asphalt removal; soil excavation and confirmation sampling; off-site disposal, backfilling of excavated areas, site restoration, and resurfacing of excavated areas; and long term monitoring. The Decision Document also noted that CBS is obligated to perform future additional remedial action upon redevelopment or exposure of "remotely accessible" soils.

On February 8, 2006, the district court issued an order modifying the injunction to 1) incorporate the Plan requirements from the Decision Document, 2) order CBS to provide the court with the results of periodic testing, and 3) order further remedial action contingent on tests showing the spread of contamination or redevelopment that would expose unremediated soils. The court also required CBS to post a bond to cover costs of future relief, which was later set at $1,311,000. CBS appealed, arguing that the injunction was not sufficiently specific, that the evidence showed there was no need for injunctive relief under MERA, and that the district court did not have the power to require CBS to post a bond. In Kennedy II, we affirmed as to the latter two arguments, but found the injunction to lack the required specificity and remanded with instructions that the district court "expressly list those actions required by the injunction." 476 F.3d at 534, 536.

CBS implemented the Plan, beginning work in July 2006. The Plan required CBS to excavate all contaminated soil up to twelve feet below the surface and backfill with clean fill. This excavation covered most of the lot and was particularly extensive on the east and north sides of the Building. In order to complete the required excavation without risk of severe structural damage, CBS determined that it was necessary to install a system of three-foot-wide concrete buttresses on the east and north sides of the Building. Rather than removing the buttresses after excavation and backfill, CBS determined that it was preferable to leave them in place. They were covered with backfill and paved over when the parking lot was restored. Restoration of the site, including permanent paving of the parking lot, was completed in May 2007. Throughout the implementation of the Plan, KBA alleges that it incurred expenses due to testing soil, holding meetings, having building personnel provide access to various parts of the Kennedy Building, and obtaining advice regarding various issues.

The district court hearing regarding modification of the injunction on remand and Kennedy's motion for additional relief was set for September 4, 2007. On August 30, 2007, the Agency issued a letter approving CBS's Response Action Implementation Report with the addition of a "down-gradient monitoring well." Kennedy contended that CBS's remedial action did not comply with the requirements in the Decision Document and asked the district court to impose additional requirements. Kennedy also moved the district court to increase the bond posted by CBS and to award Kennedy $59,448.61 in post-judgment response costs. The district court modified the injunction to impose no further requirements on CBS; declined to increase the amount of the bond; and denied Kennedy's motion for response costs. We affirm the district court as to the MERA injunction and bond issues. We remand for further proceedings on response costs.

II.

A.

Kennedy appeals the district court's modification of Paragraph 1 of the MERA injunction on remand to impose no further requirements on CBS, except those in Paragraphs 2 (testing-contingent remediation) and 3 (bond and redevelopment-contingent remediation), previously affirmed by this court.

At the outset, Kennedy argues that the district court did not comply with the appellate mandate when it failed to determine which of the Decision Document requirements further the purposes of MERA and independently evaluate CBS's performance of the applicable Decision Document requirements. In Kennedy II, we remanded the injunction to the district court to ensure that it specifically enumerated any requirements it placed on a party. 476 F.3d at 534. The district court's order did not set out detailed factual findings. Rather, it explicitly found only that CBS had "substantially performed the remediation requirements imposed upon it by the Minnesota Decision Document." We conclude that the district court's order is consistent with our mandate. See Duncan Energy Co. v. U.S. Forest Serv., 109 F.3d 497, 499 (8th Cir.1997) (reviewing implementation of appellate mandate). Because the district court did not order any further relief, our mandate did not require detailed findings.⁴ Although more detailed findings of fact would assist the parties and this court, the district court's findings were sufficient to provide a basis for its decision and permit our review. See Swanson & Youngdale, Inc. v. Seagrave Corp., 561 F.2d 171, 173 (8th Cir. 1977) (detailed findings unnecessary when, inter alia, "record itself sufficiently informs the court of the basis for the trial court's decision") (internal quotation omitted); see also Snyder v. Dewoskin (In re Mahendra), 131 F.3d 750, 759-60 (8th Cir.1997) (district court may adopt rationale of prevailing party "by implication").

Next, Kennedy argues that the district court erred in determining that no further relief was necessary under Paragraph 1 of the injunction. We review the district court's issuance of a permanent injunction for abuse of discretion. United States v. Bailey, 571 F.3d 791, 804 (8th Cir.2009). "A district court abuses its discretion when it bases its decision on a legal error or a clearly erroneous finding...