US v. Lowe

• Decision Date: 20 September 1994
• Docket Number: Civ. A. No. H-91-830.
• Citation: 864 F. Supp. 628
• Parties: UNITED STATES of America v. Ralph L. LOWE, et al.
• Court: U.S. District Court — Southern District of Texas

864 F. Supp. 628

UNITED STATES of America v. Ralph L. LOWE, et al.

Civ. A. No. H-91-830.

United States District Court, S.D. Texas, Galveston Division.

September 20, 1994.

Robert G. Darden, U.S. Attorneys Office, Houston, TX, Carrick Brooke-Davidson, Asst. Atty. Gen. Environment & Natural Resources Div., U.S. Dept. of Justice, Washington, DC, for the U.S.

Kent E. Hanson, Denver, CO, Gary T. Cornwell, The Woodlands, TX, James E. McNerney, Jr., Benckenstein & Oxford, Austin, TX, for Ralph L. Lowe, Dixie Oil Processors.

Mark J. White, Baker & Botts, Austin, TX, for Dow Chemical Co., Merichem Co., Monsanto Co., Mobile Chemical Co., Arco Chemical Co., Rohm & Maas Co., Robert Butz, William E. Repschlager, Phillip Brubaker, John W. Kongable, Goodyear Tire & Rubber Co.

Robert E. Morse, III, Crain Caton & James, Houston, TX, for Tex. Tin Co.

Jesse Rucker Pierce, Clements O'Neill Pierce & Nickens, Houston, TX, for Al Withrow, Joseph Frantz.

Roderick Duncan Hardie, Hughs Watters & Askanase, Houston, TX, for Jerry Roach.

Trent L. Rosenthal, Houston, TX, for Walter Fondren, III.

Robert B. Wilson, Simms Kidd Hubbert & Wilson, Lubbock, TX, for Mary Louise Bailey, Sheldon R. Hawkins, Jr.

Craig S. Wolcott, Michael S. Hayes, Hays McConn Price & Pickering, Houston, TX, for Ethyl Corp.

ORDER GRANTING SUMMARY JUDGMENT

KENT, District Judge.

Before the Court is Plaintiffs Motion for Summary Judgment on the issue of recoverability of oversight costs pursuant to the Comprehensive Environmental Response Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9607, 9613. For the reasons stated below, the Plaintiff's Motion is GRANTED.

This case arose in conjunction with the Dixie Oil Processors (DOP) Superfund site near Friendswood, Harris county, Texas. Pursuant to an order issued by the Environmental Protection Agency (EPA) under § 106 of CERCLA, 42 U.S.C. § 9606, Defendants are currently conducting the cleanup of the site. In November of 1992, the Plaintiff reached a settlement in principle with all Defendants. On August 2, 1994, this Court entered three Consent Decrees, binding all Defendants except for Monsanto Company, Dow Chemical Company USA, Merichem Company, Mobile Chemical Company, ARCO Chemical Company, Petro-Tex Chemical Company, and Rohm & Haas Company, (Monsanto Group).

Prior to the execution of the Consent Decree with the Monsanto Group, the United States Court of Appeals for the Third Circuit held in United States v. Rohm & Haas, 2 F.3d 1265 (3rd Cir.1993) that the United States could not recover its costs for overseeing performance of remedial actions conducted by private parties. The proposed Consent Decree with the Monsanto Group required payment of such overhead costs. As a result of the Rohm & Haas case, the Monsanto Group demanded that these costs be dropped from the settlement agreement. Plaintiff contends that the Rohm & Haas decision is incorrect. Thus, the sole remaining issue for this Court's analysis is whether the Rohm & Haas decision precludes the United States from collecting the overhead costs it claims to be recoverable under CERCLA.

Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. A fact is material if its resolution in favor of one party might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A genuine issue of material fact exists if there is a genuine issue for trial that must be decided by the trier of fact. In other words, summary judgment should not be granted if the evidence indicates that a reasonable fact-finder could find in favor of the nonmoving party. Id. See also Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

In ruling on a Motion for Summary Judgment, the Court must accept the evidence of the nonmoving party and draw all justifiable inferences in his favor. Credibility determinations, weighing of the evidence, and the drawing of reasonable inferences are left to the trier of fact. Anderson v. Liberty Lobby, supra, 477 U.S. at 255, 106 S.Ct. at 2513.

Under Fed.R.Civ.P. 56(c), the moving party bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once this burden is met, the burden shifts to the nonmoving party to establish the existence of a genuine issue for trial. Matsushita, supra, 475 U.S. at 585-87, 106 S.Ct. at 1355-56; Leonard v. Dixie Well Serv. & Supply, Inc., 828 F.2d 291, 294 (5th Cir.1987).

Where the moving party has met its Rule 56(c) burden, the nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts.... The nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.' Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita, supra, 475 U.S. at 586-87, 106 S.Ct. at 1356 (quoting Fed.R.Civ.P. 56(e)) (emphasis in original).

The Court's analysis will commence with an examination of the relevant statutory authority and language.

Statutory History of CERCLA

CERCLA 42 U.S.C. § 9601, et seq., was enacted in December 1980 "to initiate and establish a comprehensive response and financing mechanism to abate and control the vast problems associated with abandoned and inactive hazardous waste disposal sites." H.R.Rep. No. 1016(I), 96th Cong., 2d Sess. 22, reprinted in 1980 U.S.CODE CONG. & ADMIN.NEWS 6119, 6125.

CERCLA was re-authorized and amended in 1986 by the Superfund Amendment and Reauthorization Act (SARA), Pub.L. 99-499, 100 Stat. 1613 (1986). CERCLA, when originally enacted, established the Hazardous Substance Trust Fund, 42 U.S.C. § 9631, to be utilized in connection with the cleanup of releases of hazardous substances into the environment. Section 9631 was repealed when Hazardous Substance Superfund (Superfund), 26 U.S.C. § 9507, was established under the provisions of SARA. Superfund finances the Government's response to actual or threatened releases of hazardous materials into the environment. The Superfund derives its funds from general revenues, environmental taxes, monies recovered under CERCLA, and CERCLA authorized penalties and punitive damages.

Definitions Under CERCLA

The President of the United States is authorized under § 9604(a) of CERCLA to respond with "remedial" or other "removal" action against any threatened or actual release of hazardous substances that may pose a threat to public health. Congress has authorized the Government to expend Superfund money to take direct response actions which are consistent with the National Contingency Plan and to recover all response costs from all persons responsible for the releases of hazardous substances. 42 U.S.C. § 9607(a). In pertinent part, § 9607(a) provides:

(1) the owner and operator of a vessel or a facility,

(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,

(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances and

(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for —

(A) all costs of removal or remedial action incurred by the United States Government or a state or an Indian tribe not inconsistent with the National Contingency Plan;

(B) any other necessary costs of response incurred by any other person consistent with the National Contingency Plan;

(C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release; and

(D) the cost of any health assessment or health effect study carried out under § 9604(i) of this title.

As noted, § 9607(a) authorizes the Government to recover all costs of removal or remedial response actions. The statute defines "remove" or "removal" as follows:

The terms "remove or removal" means the clean up or removal of released hazardous substances from the environment, such actions as may be necessary taken in the event of the threat of release of hazardous substances into the environment, such action as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize or mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release. 42 U.S.C. Section 9601(23).

The statute defines "remedy" as follows:

The terms "remedy" or "remedial action" means those actions consistent with permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment. The term includes, but is not limited

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