U.S. v. Consolidated Coal Co.

• Decision Date: 31 January 2002
• Docket Number: No. C-2-94-785.,No. C-2-94-248.,C-2-94-248.,C-2-94-785.
• Citation: 184 F.Supp.2d 723
• Parties: UNITED STATES of America, Plaintiff, v. CONSOLIDATION COAL COMPANY, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

Page 723

184 F.Supp.2d 723

UNITED STATES of America, Plaintiff, v. CONSOLIDATION COAL COMPANY, et al., Defendants.

No. C-2-94-248.

No. C-2-94-785.

United States District Court, S.D. Ohio, Eastern Division.

January 31, 2002.

COPYRIGHT MATERIAL OMITTED

Daniel M. Darragh, Pittsburgh, PA, for Consolidation Coal Company.

Joseph D. Lonardo, Columbus, OH, for Triangle Wire & Cable, Inc.

Joel L. Lennen, Pittsburgh, PA, for Neville Chemical Company.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FOR ENTRY OF FINAL JUDGMENT

GEORGE C. SMITH, District Judge.

Third-party plaintiffs Consolidation Coal Company ("Consol") and Triangle Wire & Cable, Inc. ("Triangle") seek a declaration of liability and the equitable allocation of response costs against third-party defendant Neville Chemical Company ("Neville") under §§ 107 and 113 of the Comprehensive Environmental Response Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9607 and 9613. This case concerns the Buckeye Reclamation Landfill ("BRL"), located near St. Clairsville, in Belmont County Ohio. This matter proceeded to a bench trial.¹ For reasons that follow, the Court finds that Neville is liable under CERCLA, and allocates to Neville a 6% share of past and future response costs for cleanup of the BRL.

I. Preliminary Issues

Before the Court turns to its findings and conclusions in this case, it must first address two motions that were filed immediately before the trial: Neville's motion for summary judgment, and Consol's motion for leave to amend to add itself as a named third-party plaintiff with a claim against Neville.

A. Neville's Summary Judgment Motion

On the eve of the bench trial, Neville moved for summary judgment (Doc. 512 in Case No. C-2-94-248; Doc. 436 in Case No. C-2-94-785) on the ground that all pending claims against it in this action have been extinguished. First, Neville maintains that Consol has not asserted a claim directly against Neville. Second, Neville asserts that Triangle's contribution claim against it is barred under § 4(b) of the Uniform Comparative Fault Act ("UCFA") because the settlement agreement between Triangle and Consol did not extinguish Consol's potential claims against Neville.²

As an initial matter, the Court finds that Neville's eleventh-hour motion borders on bad faith, and smacks of having been presented for the improper purpose of delaying the trial. It was filed after Neville agreed to participate in a trial with Consol and Triangle as third-party plaintiffs, a decision Neville made after it was informed of the settlement between Consol and Triangle, Fed.R.Civ.P. 11(b)(1). This alone is sufficient basis for denial of Neville's motion. The Court will, nevertheless, proceed to examine Neville's motion on the merits.

"The UCFA is not a federal law, and [the court is] not bound by the parties' agreement to an inapplicable body of legal rules." Akzo Nobel Coatings, Inc. v. Aigner Corp., 197 F.3d 302, 306 (7th Cir.1999)(opinion by Easterbrook, J.)(reversing district court for applying UCFA §§ 2 and 6 to CERCLA allocation). Specifically, the UCFA does not govern Consol's and Triangle's contribution claims under CERCLA § 113(f). See id. at 307.

In 1986, Congress created the second CERCLA cause of action when it enacted the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), which allows potentially responsible parties³ ("PRPs") to seek contribution from other PRPs for their proportionate share of costs associated with hazardous waste cleanup. Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d 344, 348-356 (6th Cir.1998). The express language of the SARA amendment to CERCLA does not condition the right of contribution upon compliance with § 4(b) of the UCFA. Indeed, the district judge who penned the decision upon which Neville primarily relies clearly recognized this point. See Amland Properties Corp. v. Aluminum Co. of Amer., 808 F.Supp. 1187, 1198 (D.N.J. 1992), aff'd, 31 F.3d 1170 (3d Cir.1994).

Significantly, in Amland, unlike the instant case, the action had not been brought by the United States. Here, the United States is the plaintiff. Hence, in the case at bar, and in contrast to Amland, the parties that settled with the United States have an express statutory right of contribution under CERCLA § 113(f)(3)(B):

A person who has resolved its liability to the United States or a State for some or all of the costs of such action in an administrative or judicially approved settlement may seek contribution from any person who is not party to a settlement referred to in paragraph (2).

42 U.S.C. § 6713(f)(3)(B). The Amland court recognized this distinction:

were this action one brought by the United States or by a State, it is clear that the viability of Alcoa's right to contribution would not depend on whether it had extinguished all claims against other defendants.

808 F.Supp. at 1198. Here, the Court has recognized that the United States is the real plaintiff in this action. In addition, both Triangle and Consol have resolved their liability to the United States. Thus, Amland does not support Neville's "extinguishment" argument.

Morever, if Amland did apply, the Court would decline to follow it for two reasons. First, as Judge Easterbrook observed in Akzo, CERCLA contribution actions are not governed by the UCFA in the first instance. Second, the interest UCFA § 4(b) advances — the prevention of multiple recoveries for the same wrong — is adequately protected in this federal CERCLA action. Simply stated, if the Court enters a final judgment against Neville, allocating response costs, the Court would not allow a later claim by any party that would represent a multiple recovery of the same response costs, whether such a claim was brought in this or another court.⁴ In sum, the Court finds that UCFA § 4(b) does not provide a basis for summary judgment on Consol and Triangle's claims for contribution.

For the above reasons, the Court DENIES Neville's motion for summary judgment (Doc. 512 in Case No. C-2-94-248; Doc. 436 in Case No. C-2-94-785).

B. Consol's Motion for Leave to Amend

Consol moves to amend the amended third-party complaint to add Consol as a named third-party plaintiff with a claim against Neville (Doc. 509 in Case No. C-2-94-248; Doc. 433 in Case No. C-2-94-785).⁵ Consol seeks to assert such a claim on its own behalf, and as assignee of the contribution claims of the following potentially responsible parties: Allegheny Ludlum Corporation ("Allegheny Ludlum"), Aristech Chemical Corporation ("Aristech") Ashland, Inc. ("Ashland"), Beazer East, Inc. ("Beazer"), National Steel Corporation ("National Steel"), The Pullman Company ("Pullman"), SKF USA Inc. ("SKF"), USX Corporation ("USX") (collectively, the "Group of Eight"); and Wheeling-Pittsburgh Steel Corporation ("Wheeling-Pitt"). Consol maintains that Neville will not be prejudiced by the amendment of the pleadings.

Under Fed.R.Civ.P. 15(a), leave to amend a pleading shall be freely given "when justice so requires." Several factors should be considered in determining whether to grant a motion to amend:

Undue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment are all factors which may affect the decision. Delay by itself is not sufficient reason to deny a motion to amend. Notice and substantial prejudice to the opposing party are critical factors in determining whether an amendment should be granted.

Head v. Jellico Hous. Auth., 870 F.2d 1117, 1123 (6th Cir.1989) (quoting Hageman v. Signal L.P. Gas, Inc., 486 F.2d 479, 484 (6th Cir.1973)). See also Coe v. Bell, 161 F.3d 320, 341-42 (6th Cir.1998), cert. denied, 528 U.S. 842, 120 S.Ct. 110, 145 L.Ed.2d 93 (1999).

Neville argues that it will suffer substantial prejudice if the Court grants Consol leave to amend. Neville contends that it has been prejudiced by Consol's refusal to provide timely and accurate discovery on its allocation position. Specifically, Neville charges that Consol avoided providing complete discovery on its allocation position, indicating that at the proper time Consol would submit an expert's allocation report. Consol, however, never named an allocation expert, and after discovery was closed, Consol submitted an "allocation position statement," which stated that allocation was a matter of law and equity, and that it was not an appropriate subject of expert testimony. Neville asserts that it has been prejudiced by Consol's actions because, without the ability to probe Consol's allocation position through discovery, Neville is unable to respond to it adequately.

The Court rejects Neville's argument. First, it is difficult to fathom how Neville is prejudiced by an opposing party's failure to submit an expert opinion. Rather, such a failure would more logically prejudice the party who lacks an expert to support its position. Furthermore, Neville has, in fact, responded to Consol's position on allocation, including Consol's assertion that Neville's share should be enhanced for Neville's alleged failure to cooperate in the CERCLA process. Indeed, the alleged failure to cooperate is the lynchpin of both Triangle's and Consol's positions on allocation. Their allocation position is based upon equitable arguments concerning Neville's alleged failure to provide truthful or complete answers to government officials investigating the BRL, and its failure to participate, cooperate, or contribute with respect to the CERCLA cleanup process at the BRL, as opposed to matters such as relative toxicity or volume about which an allocation expert might be expected to testify. As such, it is understandable that Consol did not submit an expert report.

Furthermore, the Court finds that there is an insufficient nexus between the prejudice Neville argues it suffered and Consol's motion for leave to...