United States v. Conservation Chemical Co.

• Decision Date: 09 January 1986
• Docket Number: No. 82-0983-CV-W-5.,82-0983-CV-W-5.
• Citation: 628 F. Supp. 391
• Parties: UNITED STATES of America, Plaintiff, v. CONSERVATION CHEMICAL COMPANY, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

628 F. Supp. 391

UNITED STATES of America, Plaintiff, v.CONSERVATION CHEMICAL COMPANY, et al., Defendants.

No. 82-0983-CV-W-5.

United States District Court, W.D. Missouri, W.D.

December 12, 1985.

Supplemental Opinion January 9, 1986.

Kenneth Josephson, Asst. U.S. Atty., Kansas City, Mo., John R. Barker, Environmental Enforcement Section, Land Natural Resource Div., U.S. Dept. of Justice, Washington, D.C., Ken Weinfurt, Asst. U.S. Atty., Kansas City, Mo., John Wittenborn, Environmental Defense Section, Land and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., for plaintiff.

Niewald, Waldeck, Norris & Brown, Michael E. Waldeck, John L. Hayob, Terry L. Karnaze, Kansas City, Mo., for Conservation Chemical, CCC of Ill. and Norman Hjersted.

Thos. F. Fisher, John M. Kilroy, Jr., Shughart, Thomson & Kilroy, Kansas City, Mo., Edmund B. Frost, John A. Zackrison, Kirkland & Ellis, Washington, D.C., Robert F. St. Aubin, FMC Corp., Philadelphia, Pa., for FMC Corp.

Neil D. Williams, Overland Park, Kan., James F. Duncan, Watson, Ess, Marshall & Enggas, Kansas City, Mo., Allan J. Topol, Patricia A. Barald, David F. Williams, Covington & Burling, Washington, D.C., for IBM Corp.

Richard F. Adams, Ben R. Swank, Jr., John J. Williams, III, Slagle & Bernard, Kansas City, Mo., for third partyplaintiffs.

Linde Thomson Fairchild Langworthy Kohn & Van Dyke, P.C., John R. Cleary, Darwin Johnson, Wm. Session and Robert J. Bjerg, Kansas City, Mo., for Norman Hjersted.

J. Jeffrey McNealey, Porter, Wright, Morris & Arthur, Columbus, Ohio, Martin J. Purcell, Robert M. Kroenert, Stanley A. Reigel, Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City, Mo., Daniel W. Kemp, Legal Dept., Armco, Inc., Middleton, Ohio, for Armco, Inc.

Jerome T. Wolf, Carl H. Helmstetter, Spencer, Fane, Britt & Browne, Kansas City, Mo., John A. McKinney, Morton I. Zeidman, Alan R. Chesler, New York City, for AT & T Tech. Inc.

Stephen Jacobson, Lathrop, Koontz, Righter, Clagett & Norquist, Kansas City, Mo., for Mobay.

MEMORANDUM ORDER

SCOTT O. WRIGHT, Chief Judge.

The Court held a hearing on October 21, 1985, in order to consider a proposed Preliminary Agreement entered into between the plaintiff United States and the four original generator defendants(Armco Inc., AT & T Technologies Inc., FMC Corporation, and International Business Machines Corporation) and to conduct an evidentiary hearing concerning endangerment and the remedy proposed for the cleanup of the Conservation Chemical Company site and the response costs incurred or to be incurred by the four original generator defendants.Prior to ruling on the issues presented to the Court at the hearing, however, it is necessary for purposes of the record to explain the current procedural posture of the case.

Since the time of the pretrial conference held on July 16, 1984, this case has been bifurcated for purposes of trial.At the risk of oversimplification, Phase I of the trial was to consist of various liability issues, including endangerment and remedy, and certain insurance issues, while Phase II of the trial was to consist of an apportionment of the necessary response costs among the parties and all other remaining issues.A more in-depth analysis of the bifurcation is contained in prior Orders of the Court and recommendations of the Special Master.See Pretrial Order, July 20, 1984; Special Master's Recommendation Concerning Class Certification and Bifurcation, filed November 14, 1984, approved by Order, November 27, 1984.The Phase I trial was scheduled to commence on May 28, 1985.However, on May 25, 1985, the parties announced to the Court that they had made substantial progress toward settlement and requested that the trial be continued so that they could finalize a settlement agreement.The Court continued the Phase I trial indefinitely and scheduled a hearing for June 24, 1985 at which the parties were to report to the Court concerning the progress in settlement negotiations.See Order, May 28, 1985.At the hearing on June 24, 1985, however, it became clear to the Court that the proposed settlement might not be reached.Therefore, the Court rescheduled the Phase I trial to commence on July 15, 1985, unless a consent decree were filed by the parties on or before July 12, 1985.See Order, June 26, 1985.Subsequently, the parties jointly requested a further continuance in order to facilitate settlement negotiations and represented to the Court that there was a substantial likelihood of a remedial consent decree if, and only if, a continuance were granted.Throughout this litigation, the Court has encouraged settlement among the parties and therefore granted an additional continuance of the Phase I hearing until August 5, 1985, requiring a consent decree to be filed by August 2, 1985.See Order, July 3, 1985.A short time thereafter, the United States Court of Appeals for the Eighth Circuit issued a writ of mandamus to the Court which, in effect, required that the Court, rather than the Special Master, conduct the Phase I trial as it related to questions of liability.In re: Armco, Inc.,770 F.2d 103(8th Cir.1985).On August 2, 1985, the plaintiff United States and the four original generator defendants filed their Preliminary Agreement with the Court and the Phase I trial scheduled to commence on August 5, 1985 was cancelled.

On September 24, 1985the Court issued an Order which scheduled a hearing to take place on October 21, 1985.The hearing was designed to serve several purposes.First, the hearing was to be held to determine the appropriateness of the remedy provisions of the Preliminary Agreement.Furthermore, pursuant to the Court's authority under Federal Rules of Civil Procedure, Rule 42, the hearing was to constitute the trial on the merits of several issues in the litigation: first, whether the third-partyplaintiffs have incurred, or will incur, pursuant to the terms of the Preliminary Agreement, response costs for which they may seek contribution from other parties; and second, whether any such response costs are consistent with the National Contingency Plan within the meaning of 42 U.S.C. § 9607(a)(1)—(4)(B).Order, September 24, 1985.

The hearing was held and completed on October 21, 1985.Prior to the hearing, the original generator defendants/third-partyplaintiffs had reached separate settlement agreements with all but a few of the third-party defendant generators.The following parties were in attendance at and participated in the hearing: the plaintiff United States; original defendantsConservation Chemical Company, Conservation Chemical Company of Illinois and Norman Hjersted; original generator defendants/third-partyplaintiffsArmco Inc., AT & T Technologies Inc., FMC Corporation and International Business Machines Corporation; third-party defendantGeneral Dynamics Corporation; third-party defendantWellman Dynamics Corporation; third-party defendantAmerican Centennial Insurance Company.Also in attendance at the hearing were the Special Master, Professor Robert H. Freilich and his assistant, Neil R. Shortlidge, of the Herrick, Feinstein law firm, and the court-appointed experts, Dr. Roy O. Ball, P.E., and James W. Pollich, P.E. of ERM-North Central, Inc.In addition, a non-party, the Missouri Coalition for the Environment, was represented by an attorney who participated in the proceedings.Finally, a number of parties to the litigation entered their appearances but did not actively participate in the hearing.

The plaintiff United States presented evidence through the testimony of two witnesses, Mr. Robert Morby, the chief of the Superfund Branch of Region VII of the Environmental Protection Agency, and Mr. Murdock J. Cullinane, Jr., P.E., a research civil engineer with the Waterways Experiment Station of the United States Army Corps of Engineers.In addition to the testimony of these two witnesses, the plaintiff offered six exhibits which were received into evidence: an aerial photo/map of the Conservation Chemical Company site; a map of the area of the CCC site depicting other facilities and wells in the location of the CCC site; the Focus Feasibility Study For Conservation Chemical Company Site prepared for the plaintiff; a chart depicting the proposed remedial action for the CCC site; a chart providing a detailed illustration of the proposed cover for the CCC site; and a chart illustrating the proposed slurry wall containment system with withdrawal wells.The original generator defendants/third-partyplaintiffs presented testimony from Dr. Paul Andrew Hustad, the manager of the geotechnical department of the Burns & McDonnell Engineering Company, Kansas City, Missouri.The third-partyplaintiffs also introduced into evidence a series of exhibits which consisted of a summary of the costs which they incurred on a remedial investigation and feasibility study, a list of the various tasks that were performed on the remedial investigation study and a compliation or listing of the invoices that were sent to the third-partyplaintiffs for payment from the various consultants that were involved in the project.No other parties presented direct evidence by way of testimony or exhibits.

Prior to making findings of fact and conclusions of law, it should be noted that a number of parties filed objections to the hearing and submitted legal memoranda raising a number of points regarding the hearing.The objections emanated from the desire of the non-settling parties not to be bound by any determination of the Court concerning the appropriateness of the remedy proposed.Thus, the parties argued that the standard of review for Court consideration of a settlement agreement is less stringent than the standard which must be applied in a trial and that the settling parties were attempting to shift the burden of proof on the remedy to the non-settling parties.As the Court advised the parties at the hearing, these objections are without merit.The...