State of Ariz. v. Components Inc.
| Decision Date | 15 September 1995 |
| Docket Number | No. 93-16966,93-16966 |
| Citation | 66 F.3d 213 |
| Parties | , 26 Envtl. L. Rep. 20,061, 95 Cal. Daily Op. Serv. 7295, 95 Daily Journal D.A.R. 12,435 STATE OF ARIZONA, Grant Woods, the Arizona Attorney General, Arizona Department of Environmental Quality, Edward Z. Fox, Director, Plaintiffs-Appellees, v. COMPONENTS INCORPORATED, a Delaware Corporation, Plaintiff-Intervenor-Appellant, v. NUCOR CORPORATION, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Shane R. Swindle, Dalton, Gotto, Samson & Kilgard, Phoenix, AZ, for plaintiff-intervenor-appellant.
Kevin R. Keating, Deputy Attorney General, Phoenix, AZ, for plaintiffs-appellees.
Rolf von Oppenfeld, Kane, Jorden & von Oppenfeld, Phoenix, AZ, for defendant-appellee.
Craig J. Reece, Assistant City Attorney, Phoenix, AZ, for amicus curiae.
Appeal from the United States District Court for the District of Arizona.
Before: GIBSON, * HUG, and FERGUSON, Circuit Judges.
Plaintiff-intervenor, Components Incorporated ("Components"), appeals the district court's approval of a settlement agreement between the State of Arizona ("the State") and Nucor Corporation ("Nucor") resolving Nucor's liability under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. Sec. 9607 et seq., for contaminated ground water found within the West Central Phoenix State Superfund Study Area ("Study Area"). The district court's order is reported under State of Arizona ex rel. Woods v. Nucor Corporation, 825 F.Supp. 1452 (D.Ariz.1992). Both Nucor and Components were past owners and operators of electronics manufacturing facilities in the Study Area. Components challenges the settlement agreement on the ground that the State and the district court lacked sufficient information regarding the extent of the contamination, the probable total cost of cleanup, and a reasonable basis for determining Nucor's share of liability to approve the consent decree. In addition, Components contends that the settlement violates CERCLA because it offered Nucor an unconditional release from all future liability without providing for any reopener provisions. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm.
"We exercise considerable restraint in reviewing a district court approval of a CERCLA settlement." United States v. Montrose Chemical Corp. of California, 50 F.3d 741, 746 (9th Cir.1995). We will uphold the district court's decision unless the court abused its discretion in accepting the settlement. See id.
Components claims that neither the State nor the district court possessed sufficient information regarding the extent of contamination, the total cost of cleanup, and other technical factors to determine Nucor's proportionate liability for the environmental damage at the Study Area. We disagree. We conclude that the district court was within its discretion to hold that the State had sufficient information regarding the extent of contamination and cost of cleanup to enter into a settlement agreement with Nucor. As the district court pointed out, the State and its environmental consultants had obtained "extensive water quality data" by conducting over fifty preliminary assessments and site investigations, by collecting an aerial photo history of the Study Area, and by soliciting and receiving "detailed information regarding property ownership, manufacturing processes, and chemical usage and/or disposal practice for hundreds of facilities in the Study Area." Nucor, 825 F.Supp. at 1459. Moreover, the State's estimate of the total cost of cleanup was a "conservative" one, as the figure was based on a comparison with another site at Phoenix Goodyear Airport ("PGA") which contained a level of contaminants (350,000 ppm) far exceeding the highest potential level in the Study Area (6,000 ppm). Id. at 1460. The PGA site had a similar lithology, hydrology, and areal extent of contamination as those found in the Study Area, and contained the same contaminants. In addition, PGA employed the same method of treatment as that proposed for the Study Area. Id.
Components contends that the State could not accurately estimate Nucor's proportionate liability for contamination at the Study Area by the indexed sales method. While it is true that an examination of the relative waste disposal methods and volumetric data of waste production might provide a more accurate measure of Nucor's share of liability, such records were not kept. Moreover, the State's estimate of Nucor's liability might be conservative because the State assumed that only three parties contributed to the contamination, despite the State's belief that polluters other than Nucor and Components existed and could be held liable in future actions. Id. at 1462. Therefore, we agree with the district court's conclusions that "the indexed sales method is reasonable." The district court therefore had sufficient information to determine Nucor's proportionate liability.
Components argues that the settlement violates CERCLA Sec. 9622(e)(3)(A) because it failed to include a formal "remedial investigation and feasibility study ("RI/FS")." However, CERCLA does not require a formal RI/FS under the circumstances present in this case.
Congress enacted CERCLA in 1980 to ensure prompt and efficient cleanup of hazardous waste. Under section 9607, CERCLA imposes the costs of cleaning up contaminated facilities or sites on the parties responsible for the contamination. In 1986, Congress added section 9622, pursuant to the Superfund Amendments and Reauthorization Act ("SARA"). Section 9622 deals with settlements and it is this section, specifically section 9622(e)(3)(A), 1 that Components contends requires the State to conduct a formal RI/FS prior to approval of a settlement.
The fatal flaw with Components' argument, however, is that section 9622 applies only to settlements entered into between the United States and potentially responsible parties. It has no bearing on settlements between states and potentially responsible parties. This is clear from the plain language of the statute. Section 9622(a) states that "The President, in his discretion, may enter into an agreement with any person ... to perform any response action ... if the President determines that such action will be done properly by such person." 42 U.S.C. Sec. 9622(a) (emphasis added). Nowhere does the statute indicate that anyone other than "the President" is bound by this section.
Section 9622(e)(3)(A), on which Components relies to support its argument that a formal RI/FS must precede a settlement approval, provides no such support. Section 9622 gives the EPA specific authority to enter into settlement agreements, and section 9622(e)(3)(A) allows the EPA to issue a nonbinding preliminary allocation of responsibility to "expedite settlements ... and remedial action." 42 U.S.C. Sec. 9622(e)(3)(A). Even if we were to conclude that this section somehow binds the State, this settlement does not attempt to provide a nonbinding preliminary allocation of responsibility, "allocat[ing] percentages of the total cost of response among potentially responsible parties." 42 U.S.C. Sec. 9622(e)(3)(A). The agreement addresses only Nucor's liability.
Furthermore, this case is not a remedial action. Rather, it is a cost-recovery action in which the State is recovering response costs incurred in cleaning up a site from the responsible parties. 42 U.S.C. Sec. 9607. Section 9622(a) through (f) refer only "to actual remedial actions as opposed to agreements for the recovery of costs occasioned by environmental damage." See United States v. Hercules, 961 F.2d 796, 799 (8th Cir.1992). See also 40 C.F.R. Sec. 300.430(a)(2) () (Emphasis added).
Under the plain language of the statute, CERCLA does not require a formal RI/FS prior to approval of a state settlement agreement. In this case, the...
To continue reading
Request your trial
-
Orsay v. U.S. Dept. of Justice
...to the CSRA because Appellants did not raise the challenge in the proceedings before the district court. See Arizona v. Components Inc., 66 F.3d 213, 217 (9th Cir.1995) (parties forfeit on appeal those claims that they do not raise sufficiently for the district court to rule on D.W. NELSON,......
-
Aerojet-General Corp. v. Transport Indemnity Co
...United States Code section 9615.24 There may be some question whether states can enforce the CERCLA RI/FS (see State of Ariz. v. Components Inc. (9th Cir.1995) 66 F.3d 213, 216; Razore v. Tulalip Tribes of Washington (9th Cir.1995) 66 F.3d 236, 239), but since the state and federal actions ......
-
Nucor Corp. v. Emp'rs Ins. Co. of Wausau
...the agreement. Id. at 1455. Although challenged by nonparties, the settlement was affirmed by the Ninth Circuit. State of Ariz. v. Components Inc., 66 F.3d 213 (9th Cir.1995). 4. We only discuss the trial phases relevant to this opinion. The other three phases are discussed in the accompany......
-
Fifty-Six Hope Rd. Music, Ltd. v. A.V.E.L.A., Inc.
...waived several defenses to the Plaintiffs' claim by failing to properly raise them in the district court. See Arizona v. Components Inc., 66 F.3d 213, 217 (9th Cir.1995). Given such waivers, and without opining on the merits of those defenses, we must affirm on the basis that there was suff......