US v. Outboard Marine Corp., 88 C 8571

• Decision Date: 03 June 1991
• Docket Number: No. 88 C 8571,88 C 8572.,88 C 8571
• Citation: 764 F. Supp. 1315
• Court: U.S. District Court — Northern District of Illinois
• Parties: UNITED STATES of America, and State of Illinois, Plaintiffs, v. OUTBOARD MARINE CORPORATION, and American National Bank, Defendants.

764 F. Supp. 1315

UNITED STATES of America, and State of Illinois, Plaintiffs, v. OUTBOARD MARINE CORPORATION, and American National Bank, Defendants.

Nos. 88 C 8571, 88 C 8572.

United States District Court, N.D. Illinois, E.D.

June 3, 1991.

Linda A. Wawzenski, Asst. U.S. Atty., Victor Franklin, Asst. Regional Counsel, U.S. E.P.A., Region V, Chicago, Ill., Steven J. Willey, Trial Attorney Environmental Enforcement Section, U.S. Dept. of Justice, Washington, D.C., for plaintiffs.

Douglas P. Roller, W. Gerald Thursby, Rooks, Pitts and Poust, Jeffrey C. Fort, Maribeth Flowers, Sonnenschein Nath & Rosenthal, Chicago, Ill., for defendants.

ORDER

NORGLE, District Judge.

Before the court is the motion of Out-board Marine Corporation ("OMC") to compel the United States Environmental Protection Agency ("EPA") to disclose information relating to oversight costs in connection with confidential business information ("CBI") of Black & Veatch, an Alternative Remedial Contract Support ("ARCS") contractor employed by the EPA. In essence, OMC argues that the EPA has no authority, under the consent decree, to determine that cost information supplied by its ARCS contractor constitutes CBI.¹ For the following reasons, the court denies the motion.

After years of bitter litigation, the parties in this case entered into a consent decree concerning the clean up of Waukegan Harbor, at a cost of $19,000,000.00. Pursuant to the consent decree, OMC is required to reimburse the EPA for overseeing the clean up of the harbor. On March 29, 1990, the EPA sought reimbursement of $136,465.83 for the cost of overseeing the clean up between April 27, 1989 and December 31, 1989. OMC only disputes $50,044.29 of that amount, which relates to payments for the EPA's ARCS contractor, Black & Veatch. OMC asserts that the documentation submitted by the EPA with its demand for oversight payments is not sufficiently detailed to support a demand for payment of amounts due to the ARCS contractor. After attempts to settle this matter failed, OMC brought this motion for dispute resolution. Under section XII of the consent decree, this court has jurisdiction to settle disputes which cannot be worked out through informal means.

OMC argues that the consent decree requires the disclosure of all supporting documentation for oversight and implementation costs. However, the EPA submits that it has provided all documentation necessary under the consent decree to support payment of these costs. The EPA has submitted a cumulative cost summary of all invoices received from Black & Veatch and independent confirmation of payment from the United States Treasury. In an effort to resolve this dispute, the EPA also provided OMC with vouchers submitted by Black & Veatch in relation to the site. However, the EPA redacted certain information from these vouchers. The EPA contends that the redacted information constitutes CBI, which is protected by 40 C.F.R. part 2, subpart B. The EPA notes that ARCS contracts are awarded through a competitive process. The EPA believes that release of a breakdown of costs of an ARCS contractor would allow competitors of the ARCS contractor to discover details pertaining to the bidding process for EPA contracts. Therefore, the EPA argues that release of this material would substantially harm the competitive position of Black & Veatch. Nevertheless, OMC argues that it is entitled to examine all supporting documentation, including the information redacted from the vouchers.

As noted by the EPA, the parties cannot enter into a consent judgment which is inconsistent with the statutory framework under which the action arose. Local Number 93 v. City of Cleveland, 478 U.S. 501, 526, 106 S.Ct. 3063, 3077-78, 92 L.Ed.2d 405 (1986); City of Las Vegas, Nev. v. Clark County, Nev., 755 F.2d 697, 702 (9th Cir.1985); U.S. v. Motor Vehicle Manufacturers Assoc., 643 F.2d 644, 650-51 (9th Cir.1981). While a consent decree is interpreted under general contract principles, a court may construe the consent decree in light of the statutory basis upon which the suit was originally brought. City of Las Vegas, 755 F.2d at 702. Therefore, it is wholly appropriate for this court to consider the purpose of CERCLA when construing this consent decree.

Moreover, the consent decree itself specifically states that it is entered into pursuant to CERCLA, and that "all actions taken pursuant to, and in accordance with, this Consent Decree shall be afforded all protections contained in CERCLA as it may be amended from time to time." See Consent Decree, p. 63, Section XX. Therefore, the application of principles found in CERCLA is justified in this case.

CERCLA provides that information submitted to the EPA in connection with an action under CERCLA may be considered confidential. See 42 U.S.C. § 9604(e)(7).² 42 U.S.C. § 9604(e)(7)(E) provides:

No person required to provide information under this chapter may claim that the information is entitled to protection under this paragraph unless such person shows each of the following:

(i) Such person has not disclosed the information to any other person, other than a member of a local emergency planning committee established under title III of the Amendments and Reauthorization Act of 1986, an officer or employee of the United States or a State or local government, an employee of such person, or a person who is bound by a confidentiality agreement, and such person has taken reasonable measures to protect

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