U.S. v. Charles George Trucking, Inc.

• Decision Date: 04 August 1994
• Docket Number: Nos. 93-1691,93-2372,s. 93-1691
• Citation: 34 F.3d 1081
• Parties: , 25 Envtl. L. Rep. 20,199 UNITED STATES of America, et al., Plaintiffs, Appellees, v. CHARLES GEORGE TRUCKING, INC., et al., Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1081

34 F.3d 1081

39 ERC 1690, 25 Envtl. L. Rep. 20,199

UNITED STATES of America, et al., Plaintiffs, Appellees, v. CHARLES GEORGE TRUCKING, INC., et al., Defendants, Appellants.

Nos. 93-1691, 93-2372.

United States Court of Appeals, First Circuit.

Heard Aug. 4, 1994.

Decided Sept 13, 1994,

Richard E. Bachman, with whom John A. King and Hale, Sanderson, Byrnes & Morton, were on brief, for appellants.

John C. Cruden, with whom Louis J. Schiffer, Acting Asst. Atty. Gen., Robert H. Oakley, David W. Zugschwerdt, David C. Shilton, and Elizabeth A. Peterson, Attys., U.S. Dep't of Justice, and Ruthann Sherman, Office of Regional Counsel (EPA), for the federal appellee.

Scott Harshbarger, Atty. Gen., Karen McGuire and Margaret Van Deusen, Asst. Attys. Gen., and Nancy Preis, Sp. Asst. Atty. Gen., on brief for appellee Com. of Massachusetts.

Paul B. Galvani, with whom Thomas H. Hannigan, Jr., Jay Bradford Smith, and Ropes & Gray were on brief, for various appellees.

Laurence M. Johnson, Fordham & Starrett, Michael D. Chefitz, and Gilberg, Kurent & Kiernan, on brief for appellees Charles George, Jr., et al.

Mark S. Granger and Morrison, Mahoney & Miller on brief for appellee Boston Edison Co.

Before SELYA and CYR, Circuit Judges, and ZOBEL, ^* District Judge.

SELYA, Circuit Judge.

These appeals arise out of two consent decrees that together resolve a majority of the cost recovery disputes associated with the cleanup of a hazardous waste site in Tyngsboro, Massachusetts (the Site). Appellants, who are the principal owners and operators of the Site, ¹ strive to convince us that the district court misjudged the relevant goals of the Comprehensive Environmental Response, Compensation, & Liability Act (CERCLA), 42 U.S.C. Secs. 9601-9675, and, therefore, erred in placing its imprimatur on the decrees. We are not persuaded.

I. BACKGROUND

This litigation dates back to 1985, when the United States and the Commonwealth of Massachusetts filed separate cost recovery actions, soon consolidated, against appellants and other alleged owner-operators (collectively, "the junior Georges"), including Charles George, Jr. and James George (children of Charles and Dorothy George), and the sons' firm, C & J Trucking Co. The federal government's complaint alleged claims under 42 U.S.C. Secs. 9604(a), 9604(b), 9604(e), 9607(a), 6928(a) & 6928(g). The Commonwealth's complaint alleged claims under 42 U.S.C. Sec. 9607(a) and Mass.Gen. Laws ch. 21E, Sec. 5.

The early procedural history of the struggle is described in a previous opinion of this court, see United States v. Charles George Trucking Co., 823 F.2d 685 (1st Cir.1987), and need not be revisited. Thereafter, acting on plaintiffs' motions for partial summary judgment, the district court adjudged appellants to be jointly and severally liable for the costs of cleanup. However, the court left open the question of the junior Georges' liability due to factual disputes anent the degree of control that they exercised over the Site.

In June of 1989, plaintiffs amended their complaints to add twenty-four generator and transporter defendants. In turn, these defendants brought third-party claims for contribution against thirty-one other putative generators. They also filed counterclaims against the plaintiffs, charging negligent regulation. Appellants emulated this tactic, serving similar counterclaims.

The district court intervened to impose some structure on this welter of claims and cross-claims. By a case management order (CMO) dated April 12, 1990, Judge Woodlock deemed the third-party defendants to have asserted all available cross-claims and counterclaims against other parties, but precluded the plaintiffs from asserting claims directly against the third-party defendants. The judge supplemented the CMO in a subsequent bench ruling through which he limited development of so-called trans-shipment issues, that is, issues involving wastes hauled to the Site after first being dumped elsewhere.

By the fall of 1991, the dust had settled. A new round of summary judgment motions had been heard (most were denied), and trialworthy issues had been identified as to the liability of all defendants, save only the appellants, and as to virtually all aspects of the remedial phase. Unresolved questions also remained as to the counterclaims asserted against the plaintiffs. The likelihood of lengthy litigation loomed large.

Before too long, settlement negotiations began in earnest. After a fitful start, the district court appointed Chief Judge Tauro as a settlement master. ² Numerous meetings among the parties yielded an agreement by the plaintiffs, in essence, to extinguish all claims against the generators and transporters (including the third-party defendants) in exchange for a global "cash-out" payment of approximately $36,000,000. The generators and transporters were to decide among themselves how to share the aggregate cost of the settlement. The federal and state governments agreed to contribute an additional $3,103,712 as a token of their responsibility. After further negotiations, again held under Judge Tauro's auspices, the plaintiffs and the junior Georges also reached an accord, proposing to extinguish the latters' liability in return for a payment of $3,100,000. Though appellants participated in bargaining sessions from time to time, they eventually withdrew from the negotiations. The claims against them remain unresolved.

The settling parties prepared two proposed consent decrees. They presented the first, embodying the settlement reached by the plaintiffs with the generators and transporters, to the district court on December 17, 1992. They presented the second, embodying the plaintiffs' suggested settlement with the junior Georges, on July 27, 1993. Both were advertised in the Federal Register, see 28 C.F.R. Sec. 50.7, but elicited no public comment.

At a hearing held on May 24, 1993, Judge Woodlock applied the standards set forth in United States v. Cannons Engineering Corp., 899 F.2d 79, 85 (1st Cir.1990), and found the generator/transporter decree to be reasonable, fair, and faithful to CERCLA's objectives. Following a separate hearing held on November 12, 1993, the court made similar findings in regard to the second decree. Judge Woodlock entered both decrees under Fed.R.Civ.P. 54(b), thus permitting appellants, as the lone objectors, to prosecute these appeals.

II. STANDARD OF REVIEW

Despite appellants' animadversions, Cannons has not rusted. It teaches that CERCLA consent decrees must be reasonable, faithful to the statute's objectives, and fair (both procedurally and substantively). Cannons, 899 F.2d at 85. The battle over whether a particular decree achieves these benchmarks will usually be won or lost in the trial court. By the time such decrees arrive on the doorstep of the court of appeals, they are "encased in a double layer of swaddling." Id. at 84. In the first place, a trial court, without abdicating its responsibility to exercise independent judgment, must defer heavily to the parties' agreement and the EPA's expertise. See id. In this case, the inner layer of swaddling is especially thick because of the role played by the distinguished special master in overseeing negotiations. The second basis for deference is equally compelling. Because an appellate court ordinarily cannot rival a district court's mastery of a factually complex case--a mastery that is often, as in this instance, acquired through painstaking involvement over many years--the district court's views must also be accorded considerable respect.

Largely in consequence of these layers of protective swaddling, an appellate tribunal may overturn a district court's decision to approve or reject the entry of a CERCLA consent decree only for manifest abuse of discretion. In this case, then, the decision below stands unless the objectors can show that, in buying into either or both of the decrees, the lower court made a serious error of law or suffered a meaningful lapse of judgment. See id.

III. DISCUSSION

Appellants advance four sets of arguments in support of their claim that the district court too freely accepted the proposed settlement. We proceed to examine each of the four components that comprise this asseverational array.

A. Reasonableness.

A CERCLA consent decree is reasonable when it provides for an efficacious cleanup, and at the same time adequately compensates the public for the cost of that cleanup. See id. at 89-90. Efficacy is not merely a function of how close a settlement comes to meeting a scientifically defined ideal, nor is adequacy merely a function of how close a settlement comes to meeting an estimate of projected costs. These are, rather, pragmatic concepts, and evaluating them requires common sense, practical wisdom, and a dispassionate assessment of the attendant circumstances.

In this case, appellants question the efficacy of the proposed cleanup, and claim that they are entitled to an evidentiary hearing on the matter. In support of the first half of this objection, appellants do little more than plagiarize plaints from prior pleadings filed by other parties in opposition to plaintiffs' previous motions for partial summary judgment; they do not attempt to explain these points, fail to set forth supporting documents in a record appendix, and rely on rhetoric to the exclusion of either record citations or scientific fact.

We reject appellants' objection on two bases. First, it is presented to us in a slipshod fashion, without developed argumentation, and is, therefore, not entitled to substantive consideration. See Ryan v. Royal Ins. Co., 916 F.2d 731, 734 (1st Cir.1990); United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S. 1082, 110 S.Ct. 1814, 108 L.Ed.2d 944 (1990). Second, our independent review of the record leaves us confident that Judge Woodlock acted well within the realm of his discretion in concluding that the consent decrees...