US v. Conservation Chemical Co., 82-0983-CV-W-5.
| Decision Date | 28 April 1987 |
| Docket Number | No. 82-0983-CV-W-5.,82-0983-CV-W-5. |
| Parties | UNITED STATES of America, Plaintiff, v. CONSERVATION CHEMICAL COMPANY, et al., Defendants and Third-Party Plaintiffs, v. GENERAL DYNAMICS CORPORATION, et al., Third-Party Defendants. |
| Court | U.S. District Court — Western District of Missouri |
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 party plaintiffs.
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.
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.
On April 17, 1987, the Special Master filed recommendations concerning the motion of the United States to enforce the Preliminary Agreement between the United States and the Original Generator Defendants. The Special Master also filed recommendations concerning the Court's jurisdiction to proceed with the CERCLA Section 106(a) action. As required, the Court has independently reviewed the record regarding the issues relating to the Master's report, including the Government's motion and responses thereto, as well as the Government's objections filed to the report. See United States v. Louisiana, 470 U.S. 93, 105 S.Ct. 1074, 1080 84 L.Ed.2d 73 (1985).
The Court fully concurs with the Master's recommendation that the remedy provisions of the Preliminary Agreement cannot be construed as a partial consent decree, "functional or otherwise" and that even assuming a contract exists, the conditions precedent to the Original Generator Defendants' performance have not occurred, and performance therefore is not due. Further, the Court finds that the 1986 Amendments to CERCLA (SAPA) do not divest federal district courts of equity jurisdiction in CERCLA Section 106(a) actions, and that the Court will exercise its equitable powers to determine the appropriate remedy for the CCC site.
Accordingly, it is hereby
ORDERED that the Special Master's Recommendation that the Motion of the United States to Enforce the Preliminary Agreement be denied, is approved and adopted by the Court.
ROBERT H. FREILICH, Special Master.
During proceedings before the Special Master on February 17, 1987, the Special Master asked that motions and briefs1 be filed with respect to various substantive and procedural issues "so that we know what is the relief you are asking." (Transcript of Proceedings, p. 32; see also, pp. 16, 20-21, 46 and 50).
On February 18, 1987, the Special Master issued his 30th Set of Recommendations Concerning Pretrial Matters.2 Under the third section, six issues likely to be raised via the anticipated motions were listed and the parties were invited to file motions and to brief each issue. Except for the United States' motion relating to enforcement of the Preliminary Agreement, no other motions have been filed, although the parties3 have filed extensive briefs and memoranda of law addressing each of the six procedural issues.4
Some of the matters addressed in the briefs and memoranda are useful in settling the legal predicate for further actions, and to that degree they will be discussed. Issues and matters which are unnecessary because of this Recommendation as well as those not properly framed or not yet properly before the Court will not be addressed.5
Pending is the United States' (hereinafter "the government" or "plaintiff") Motion6 to Enforce the Preliminary Agreement Between the United States and the Original Generator Defendants.7
To support its motion, the government principally relies on two arguments. First, it argues that the Preliminary Agreement is a binding contract between the government and the Original Generator Defendants which requires performance absent facts justifying modification or recession. Secondly, the government argues that the Preliminary Agreement is "functionally a partial consent decree," for the reason that the portion of the Agreement relating to the remedy was consented to by the parties and approved by an order of the court and brings finality to that portion of the case dealing with the remedy. (United States' Memorandum, p. 11). Under its interpretation, the government relies on Rule 60(b), Fed.R.Civ.P., to obtain relief in enforcing the Preliminary Agreement and the Court's order in approving it.
In opposition to the motion, the Original Generator Defendants argue that specific performance will not lie against them because there is an adequate remedy at law, because performance would be impossible, and because conditions precedent to their obligations have not been met. Similarly, they contend that the Preliminary Agreement is not a consent decree, but that if it is, it should be modified under Rule 60(b) because the Rule allows for modification where prospective application of the judgment is not longer equitable, or because potential relief lies in an independent action in equity.
In reply, the government contends that the Original Generator Defendants have failed to demonstrate mutual mistake of fact going to the essence of the contract since subsurface conditions were known to the Original Generator Defendants, and thus they should not be released from their obligations. The government also argues that cost increases are not extreme, attaching as evidence the affidavit of a private consultant and a letter allegedly containing admissions by the Original Generator Defendants' putative agent, IT Corporation.
A brief review of the pertinent history that brought the parties to this motion is in order. On August 2, 1985, the government and the Original Generator Defendants entered into a "Preliminary Agreement" relating to the implementation of a remedy at the CCC site in Kansas City, Missouri. The remedial action set out in the Preliminary Agreement included specifications for: (1) surface cleanup/surface preparation; (2) a multilayered surface cap; (3) a slurry wall; (4) an interior withdrawal well system; (5) an interior withdrawal well water treatment system; (6) a groundwater monitoring system; and (7) an operation and maintenance program.
The Preliminary Agreement was the subject of a hearing before the Court on October 21, 1985. The primary purpose of the hearing was to determine the appropriateness of the remedy provisions of the Preliminary Agreement. In approving the proposed remedy, the Court found the remedy to be "legal, fair and reasonable." See, United States v. Conservation Chemical Co., 628 F.Supp. 391, 404 (W.D.Mo.1985).
Although the Original Generator Defendants have solicited bids and awarded a contract for the design and implementation of the remedial work, the Original Generator Defendants now contend that geologic investigations suggest that subsurface conditions at the site are materially different from that which the parties had assumed. Since the Original Generator Defendants have not begun to implement the remedy specified by the Preliminary Agreement, the government has sought to enforce the Preliminary Agreement.
At the outset, a definitional issue not addressed by the parties should be noted. A contract is an agreement between two or more persons which creates an obligation to do or not to do a particular thing. Restatement (Second) of Contracts § 1 (1981). Its essentials are competent parties (Restatement §§ 9-16), subject matter, a legal consideration (Restatement §§ 71-109), and mutuality of agreement and obligation (Restatement §§ 17-70).
Whether the Preliminary Agreement can be characterized as a contract is an open question since the Preliminary Agreement contemplates a further, final consent decree and thereby lacks mutuality of agreement. The existing Preliminary Agreement may be no more than an agreement to agree or a manifestation of a willingness to enter into a final agreement. See, e.g., Dumas v. First Fed. Sav. & Loan Ass'n., 654 F.2d 359 (5th Cir.1981) (); Mitchell v. Hart, 41 F.R.D. 138 (S.D.N.Y.1966) (); Brown v. Childers, 254 S.W.2d 275 (Mo.App.1953) (...
To continue reading
Request your trial
-
US EPA v. Environmental Waste Control, Inc.
...court for enforcement, it makes little sense to refer the very question at issue back to the agency." U.S. v. Conservation Chemical Company, 661 F.Supp. 1416 (W.D.Mo.1987), quoting C.A.B. v. Aeromatic Travel Corp., 489 F.2d 251, 254 (2nd Cir.1974). See Merry v. Westinghouse Electric Corp., ......
-
U.S. v. Ottati & Goss, Inc.
...agree with the reasoning of the courts in United States v. Hardage, 663 F.Supp. 1280 (W.D.Okla.1987), and United States v. Conservation Chemical Co., 661 F.Supp. 1416 (W.D.Mo.1987). Both of these cases involved suits for injunctive relief under Sec. 9606(a). In Conservation Chemical the gov......
-
US v. Seymour Recycling Corp.
...663 F.Supp. 1280 (W.D.Okla.1987). The Generator Defendants also cite a Special Master's Recommendation in United States v. Conservation Chem. Co., 661 F.Supp. 1416 (W.D.Mo.1987). This Court is not bound by the decisions of other district judges. In fact, such decisions are "entitled to no m......
-
City of Starkville v. 4-COUNTY ELECTRIC POWER ASSN.
...the common law doctrine of impossibility and noting that it is "today often called `impracticability'"); United States v. Conservation Chem. Co., 661 F.Supp. 1416, 1422 (W.D.Mo.1987) ("[t]he doctrine of impossibility has been tempered to some degree by characterizing it as ¶ 28. Piaggio req......