US v. Hardage

• Decision Date: 08 December 1989
• Docket Number: No. CIV-86-1401-P.,CIV-86-1401-P.
• Citation: 733 F. Supp. 1424
• Parties: UNITED STATES of America, Plaintiff, v. Royal N. HARDAGE, et al., Defendants. ADVANCE CHEMICAL COMPANY, et al., Hardage Steering Committee Defendants and Third-Party Plaintiffs, v. ABCO, INC., et al., Third-Party Defendants.
• Court: U.S. District Court — Western District of Oklahoma

733 F. Supp. 1424

UNITED STATES of America, Plaintiff, v. Royal N. HARDAGE, et al., Defendants.

ADVANCE CHEMICAL COMPANY, et al., Hardage Steering Committee Defendants and Third-Party Plaintiffs, v. ABCO, INC., et al., Third-Party Defendants.

No. CIV-86-1401-P.

United States District Court, W.D. Oklahoma.

December 8, 1989.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John R. Barker, Sr. Counsel, Environmental Enforcement Section, U.S. Dept. of Justice, Anna L. Wolgast, Steven Novick, Washington, D.C., for U.S.

Charles DeSaillan, Washington, D.C., for EPA.

Kenneth N. McKinney, Robert D. Tomlinson, Mark D. Coldiron, Oklahoma City, Okl., Amanda Birrell, Austin, Tex., Karl Bourdeau, Tom Richichi, Washington, D.C., Bruce H. Brubaker, Fairlawn, Ohio, Pamela J. Cissik, Morristown, N.J., Stephen Fink, James C. Morriss, III, Dallas, Tex., Allan Gates, Little Rock, Ark., Michael D. Graves, Tulsa, Okl., Walter J. Hryszko, Houston, Tex., Jay Johnson, Dallas, Tex., Jeffrey N. Martin, Washington, D.C., David C. Minc, Akron, Ohio, Tim Olsen, Tulsa, Okl., Howard Seitzman, Austin, Tex., Charles W. Shipley, Blake Champlin, Tulsa, Okl., Elizabeth M. Weaver, Los Angeles, Cal., Jerome T. Wolf, Carl Helmstetter, Kansas City, Mo., for Hardage Steering Committee.

Andrew M. Coats, Barbara Hoffman, Oklahoma City, Okl., Eva M. Fromm, Houston, Tex., Joseph F. Guida, Jean McLemore, Steve McKinney, Oklahoma City, Okl., Calvin Sawyier, Chicago, Ill., Harry R. Palmer, Jr., Kirk W. Koester, Oklahoma City, Okl., Jim Smith, John D. White, Doug Craig, Gerald Schulke, Steve LeSatz, Houston, Tex., Irwin H. Steinhorn, Oklahoma City, Okl., J. Kemper Will, Englewood, Colo., on-Hardage Steering Committee.

PHILLIPS, District Judge.

Before the Court is the plaintiff United States' motion for partial summary judgment on response costs filed September 11, 1989. The United States seeks summary judgment against each of the defendants on the issue of their liability under Section 107(a)(4)(A) of CERCLA¹, 42 U.S.C. § 9607(a)(4)(A), for response costs incurred by the United States in conjunction with the Hardage site. The amount of response costs requested by the United States in this motion for partial summary judgment is $6,292,065.25. In addition, the United States also seeks a declaration that the defendants are liable for the United States' future response costs at the Hardage site. Six individual defendants or groups of defendants responded in opposition.² With this Court's approval, the United States filed a joint reply to all the responses on November 6, 1989. For the reasons set forth below, the United States' motion for partial summary judgment for response costs is GRANTED, with the exception of the request for indirect costs of the Department of Justice ("DOJ"), against defendants who have stipulated to liability or been found liable.³ In addition, the United States' request for a declaratory judgment finding the defendants liable for the United States' future response costs is also GRANTED against these same defendants, with the exception of the indirect costs of DOJ.⁴

I. STANDARD FOR SUMMARY JUDGMENT

The facts presented to the court upon a motion for summary judgment must be construed in a light most favorable to the nonmoving party. Board of Educ. v. Pico, 457 U.S. 853, 864, 102 S.Ct. 2799, 2806, 73 L.Ed.2d 435 (1982); United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). If there can be but one reasonable conclusion as to the material facts, summary judgment is appropriate. Only genuine disputes over facts which might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Finally, the movant must show entitlement to judgment as a matter of law. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir.1985); Fed.R.Civ.P. 56(c).

Although the Court must view the facts and inferences to be drawn from the record in the light most favorable to the nonmoving party, "even under this standard there are cases where the evidence is so weak that the case does not raise a genuine issue of fact." Burnette v. Dow Chem. Co., 849 F.2d 1269, 1273 (10th Cir.1988). As stated by the Supreme Court, "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986) (quoting Fed.R. Civ.P. 1).

The Supreme Court articulated the standard to be used in summary judgment cases, emphasizing the "requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510 (emphasis in original). A dispute is "genuine" "if a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. at 2510. The Court stated that the question is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. at 2512. "The mere existence of a scintilla of evidence in support of the party's position will be insufficient; there must be evidence on which the jury could reasonably find for the party." Id. at 252, 106 S.Ct. at 2512. "The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting Advisory Committee Note to Fed.R.Civ.P. 56(e)).

The Court determines whether the nonmovant has submitted evidence of the essential elements of the claim by viewing "the evidence presented through the prism of the substantive evidentiary burden" so that a reasonable factfinder could find for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. at 254, 106 S.Ct. at 2513. The Court is only required to draw reasonable inferences from the evidence. See Lucas v. Dover Corp., Norris Div., 857 F.2d 1397, 1400 (10th Cir.1988) (J.N.O.V. standard). Implausible inferences can be rejected. Cf. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 585-598, 106 S.Ct. at 1355-1362 (rejecting implausible inference of intent in antitrust conspiracy).

A party resisting a motion for summary judgment must do more than make conclusionary allegations, it "must set forth facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Dart Indus. v. Plunkett Co. of Okla., Inc., 704 F.2d 496, 498 (10th Cir. 1983); see Lake Hefner Open Space Alliance v. Dole, 871 F.2d 943, 945-46 (10th Cir.1989) (Plaintiff did not "by affidavits or as otherwise ... set forth specific facts showing that there is a genuine issue for trial."). The Court will not grant summary judgment based on a battle of affidavits that raise genuine material disputes. De Vargas v. Mason & Hanger-Silas Mason Co., 844 F.2d 714, 719 (10th Cir.1988). However, affidavits must be submitted in good faith. Fed.R.Civ.P. 56(g). And, conclusionary affidavits are insufficient to defeat summary judgment. Luckett v. Bethlehem Steel Corp., 618 F.2d 1373, 1380 & n. 7 (10th Cir.1980). Conclusionary opinions of experts that fail to provide specific facts are insufficient as well. Evers v. General Motors Corp., 770 F.2d 984, 986-87 (11th Cir.1985).

II. UNDISPUTED FACTS

Rule 14(B) of the Western District of Oklahoma provides a framework for determining undisputed facts at the summary judgment stage. The Rule provides:

The brief in support of a motion for summary judgment (or partial summary judgment) shall begin with a section that contains a concise statement of material facts as to which movant contends no genuine issue exists. The facts shall be numbered and shall refer with particularity to those portions of the record upon which movant relies. The brief in opposition to a motion for summary judgment (or partial summary judgment) shall begin with a section which contains a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute shall be numbered, shall refer with particularity to those portions of the record upon which the opposing party relies, and, if applicable, shall state the number of the movant's fact that is disputed. All material facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party.

W.D.Okla.R. 14(B).

An analysis of the United States' motion and reply and the responses of HSC, L & S Bearing by reference, Stock Yards, and USPCI reveal the following facts are undisputed within the meaning of Rule 14(B) for the purposes of this motion only. Fed.R. Civ.P. 56(e); W.D.Okla.R. 14(B).

1. Hazardous substances are located at the Hardage site.⁵

2. Hazardous substances have been released from the Hardage site into the soil and groundwater at, around, and beneath the Hardage site.⁶

3. Hazardous substances from the Hardage site have migrated from the site and have contaminated or threaten to contaminate the Criner Creek/North Criner Creek alluvial aquifer.

4. The hazardous substances at the Hardage site are commingled.⁷

5. Each of the defendants to this action is an owner or operator of the Hardage site, a person who disposed of or arranged for the disposal of hazardous substances at the Hardage site, or a person who transported hazardous substances to the Hardage site for disposal and selected the Hardage site as the site for disposal of such hazardous substances.⁸

6. Environmental Protection Agency ("EPA") Headquarters' employees performed response activities at the Hardage site.⁹

...