Opinion
3:CV-02-0562
September 19, 2003
MEMORANDUM
In this action for "equitable contribution" for response costs incurred by plaintiff Alcan Aluminum Corporation ("Alcan") pursuant to a judgment of this Court, twenty-two of the twenty-five named defendants have moved for summary judgment on the ground that a consent decree, to which they, the United States, and the Commonwealth of Pennsylvania are parties, affords them protection from contribution claims in accordance with section 113(f)(2) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9613(f)(2). Observing that when the consent decree was negotiated the United States had recovered all response costs for the event that led to Alcan's liability and ensuing contribution claim, Alcan contends that contribution protection is unavailable because the United States could not have maintained a cost recovery action the movants. Alcan's position is without merit. Accordingly, the moving defendants' summary judgment motion will be granted. I. Background
Mean brings claims for contribution pursuant to both CERCLA, 42 U.S.C. § 9613(f)(1), and state common law. Mean's contribution claims largely arise from this Court's entry of judgment against it on June 28, 1995. United States v. Mean Aluminum Corp., 892 F. Supp. 648 (M.D. Pa. 1995), affd, 96 F.3d 1434 (3d Cir. 1996) (unpublished table decision), cert. denied. 521 U.S. 1103 (1997). This judgment was the result of a complaint filed on November 24, 1989 by the United States in an action against twenty defendants, including Mean. The United States filed the lawsuit in order to recover response costs that it had incurred in undertaking an emergency response action at the Butler Mine Tunnel Superfund Site ("Site"), which is located in Pittston, Pennsylvania.
The U.S. Environmental Protection Agency (EPA) listed the Site on the National Priorities List, 40 C.F.R. pt. 300 app. B, pursuant to CERCLA, 42 U.S.C. § 9605, on July 1, 1987.
The facts underlying the judgment are as follows:
• In the late 1970's, approximately 2 million gallons of oily wastes containing hazardous substances were dumped down an air shaft or borehole leading to a network of coal mines and related tunnels, caverns, pools and waterways bordering the east bank of the Susquehanna River in Pittston, Pennsylvania. . . . The mine workings are drained by the Butler Tunnel, which discharges directly into the Susquehanna River.
• From mid-1978 to late 1979, approximately 32,500 to 37,500 gallons of Mean's used emulsion was dumped down the borehole leading to the mine workings served by the Butler Tunnel.
• In September of 1985, in the wake of Hurricane Gloria, approximately 100,000 gallons of oily waste contaminated with hazardous substances were discharged from the Butler Tunnel into the Susquehanna River.
• [The Environmental Protection Agency's] . . . response costs in addressing this release totaled $1,302,290.18. Response actions included containing an oily material on the river through the use of absorbent booms; immediately removing and disposing of 161,000 pounds (over 80 tons) of oil and chemical-soaked debris and soil, monitoring, sampling and analysis of air and water, and conducting hydrogeologic studies.
• Alcan's used emulsion was commingled in the waste minerals discharged into the Susquehanna River in September of 1985.Alcan Aluminum Corp., 892 F. Supp. at 651-52.
Each of the defendants in the 1989 lawsuit, except Alcan, settled with the government, agreeing to pay a total of $828,500 for response costs and to conduct further remedial actions at the Site. The government ultimately recovered a judgment against Alcan in the amount of $473,790.18, representing the balance of the emergency response costs. In the matter sub judice. Alcan seeks contribution for the amount of the judgment, post-judgment interest of $178,580.89, and other costs incurred since the date of the judgment in excess of $400,000.00. PL's Compl. at 8-9.
The movants characterize the additional costs as litigation-related fees and expenses. Settling Defs.' Br. in Supp. of Mot. for Summ. J. at 2.
The Consent Decree at issue in the case relates to the permanent remedy selected for the Site. On July 15, 1996, EPA issued a Record of Decision (ROD), which described the remedy chosen for the Site, as well as measures to address the possibility of future discharges of hazardous substances from the Butler Tunnel. On October 30, 2000. the United States filed another complaint against numerous private parties, not including Alcan, seeking reimbursement for past and future response costs incurred at the Site as well as the implementation of the remedy set forth in the ROD. This complaint asserted that the EPA had incurred additional response costs in the amount of $670,000 in connection with the Site. Compl. at ¶ 68.United States v. Amerada Hess. No. 3:CV:00-1912 (M.D. Pa. 2000). Simultaneous with the commencement of this action, the EPA lodged a proposed consent decree. Following the requisite public notice with opportunity to comment, this Court approved the Consent Decree on February 15, 2001, thereby resolving the actions brought by the EPA and the Pennsylvania Department of Environmental Protection.
0n July 1, 1999, the United States filed a complaint against Alcan to recover further unreimbursed response costs incurred at the Site. Compl., United States v. Alcan Aluminum Corp., No. 99-cv-01160 (M.D. Pa. 1999). This matter has been stayed pending a decision in a related case.
Also on October 30, 2000, the Pennsylvania Department of Environmental Protection, which also incurred response costs at the Site, brought an action under CERCLA and the Pennsylvania Hazardous Sites Cleanup Act (HSCA), 35 Pa. Cons. Stat. Ann. §§ 6020.101, et seq,. against the same parties to recover past response costs and to implement a permanent remedy. Commonwealth of Pennsylvania-Dep't of Envtl. Prot. v. Amerada Hess Corp,. No. 3:CV:00-1911 (M.D. Pa). By stipulation, the two cases were consolidated.
Alcan did not object to the proposed consent decree.
The parties to the Consent Decree consist of the United States, the Commonwealth of Pennsylvania, and numerous private parties, not including Aban. Alcan had been invited to participate in the settlement discussions resulting in the Consent Decree, but the extent of its participation in the Consent Decree was its presence at only one negotiating session in 1997.
Regarding contribution protection, paragraph 92 of the Consent Decree provides as follows:
The Parties agree, and by entering this Consent Decree this Court finds, that the Settling Defendants and the Settling Federal Agencies are entitled . . . to protection from contribution actions or claims as provided by CERCLA Section 113(f)(2), 42 U.S.C. § 9613(f)(2), and as provided by section 705(c)(2) of HSCA, 35 P.S. § 6020.705(c)(2)[,] for matters addressed in this Consent Decree. For purposes of paragraph 92, the "matters addressed" in this settlement are all response actions taken or to be taken and all response costs incurred or to be incurred by the United States, the Commonwealth of Pennsylvania, the Settling Defendants or any other person with respect to the [Butler Mine Tunnel Superfund] Site.
Consent Decree, United States v. Amerada Hess. No. 3:CV:00-1912, ¶ 92 (M.D. Pa. 2001) (emphasis added).
"Plaintiff Alcan qualifies as a "person" pursuant to CERCLA, 42 U.S.C. § 9601(21), the definition of which is incorporated into the Consent Decree. Consent Decree, United States v. Amerada Hess. No. 3:CV:00-1912, ¶ 4 (M.D. Pa. 2001).
On April 4, 2002, Alcan filed the present action, asserting claims for contribution against twenty-five defendants, twenty-two of whom are parties to the Consent Decree. Litigation in this action has been stayed pending a decision on whether the twenty-two settling defendants are entitled to contribution protection.
The settling defendants are Amerada Hess Corporation; Avis Rent A Car System, Inc.; Buckeye Pipeline Company; CBS Corporation (formerly Westinghouse); Caterpillar, Inc.; Chevron USA, Inc. (for Gulf Oil Corporation and Texaco, Inc.); Consolidated Rail Corporation (now CSX); Crucible Materials Corporation; Eveready Battery Company, Inc.; the Hertz Corporation; Mack Trucks, Inc.; Miller Brewing Company; Mobil Oil Corporation (now Exxon-Mobil); Niagra Mohawk Power Corporation; Ogden Aviation Terminal Services, Inc.; Pharmacia Upjohn Company; Reynolds Metals Company (now Alcoa); Signature Flight Support (formerly Butler Aviation); Textron, Inc. (formerly Avco Corporation); and United Parcel Service, Inc. Defendants to this action who are not parties to the Consent Decree are Pabst Brewing Company, Rockwell International Corporation, and Smith-Corona Corporation.
II. Discussion A. Summary Judgment Standards
Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is "material" if proof of its existence or non-existence might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). An issue is "genuine . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."Anderson. 477 U.S. at 248 (internal quotation omitted). The facts necessary to resolve the issue in the present case are essentially undisputed, and the issue is basically a question of law.
B. Contribution Protection Under CERCLA
Section 113(f)(2) of CERCLA, 42 U.S.C. § 9613(f)(2) (2003), provides protection from contribution claims as follows: "A person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement." Courts have consistently ruled that this provision permits those who settle with the government (settlors) to obtain protection against claims for contribution by those who do not settle with the government (non-settlors). See United States v. Southeastern Pa. Transp. Auth., 235 F.3d 817, 822-23 (3d Cir. 2000) (affirming a district court's holding that settlors were protected from contribution claims by a non-settlor pursuant to a consent decree and CERCLA); United States v. Colo. E. R.R. Co., 50 F.3d 1530, 1537 (10th Cir. 1995) ("[A] PRP [potentially responsible party] who has entered into a judicially approved settlement with the United States may not be held liable for contribution to another PRP if the contribution claim concerns matters addressed in the settlement."); United States v. Cannons Engineering Corp., 899 F.2d 79, 92 (1st Cir. 1990) ("Congress plainly intended non-settlors to have no contribution rights against settlors regarding matters addressed in settlement."); Akzo Coatings of America. Inc. v. American Renovating. 842 F. Supp. 267, 271 (E.D. Mich. 1993) ("The settlor need not fear that a later contribution action by a non-settlor [following a settlement with the government] will compel them to pay additional money to extinguish their liability."); Dravo Corp. v. Zuber. 804 F. Supp. 1182, 1185 (D. Neb. 1992) ("The courts have consistently enforced CERCLA by providing settling parties with immunity from any claim regarding matters addressed in the settlement with the government provided the non-settling party's claim is in substance a claim for contribution, even though the claim may be called something else."); United States v. Pretty Products. Inc., 780 F. Supp. 1488, 1494 (S.D. Ohio 1991): United States v. Union Gas Co., 743 F. Supp. 1144, 1152 (E.D. Pa. 1990): United States v. Rohm Haas Co., 721 F. Supp. 666, 675 (D.N.J. 1989). The policy reason underlying contribution protection is to facilitate early settlements with the government. Cannons Engineering Corp., 899 F.2d at 92; Akzo Coatings of America. Inc., 842 F. Supp. at 271; Union Gas Co., 743 F. Supp. at 1152-53.
Under CERCLA, the potential liability of non-settlors is reduced by "the amount of the settlement," 42 U.S.C. § 9613(f)(2) (2003), not by the settlors' proportionate share of liability. Thus, contribution protection may result in situations where a non-settlor is responsible for a disproportionate share of liability. In re Reading Co., 115 F.3d 1111, 1119 (3d Cir. 1997) ("PRPs [potentially responsible parties], who choose not to settle, are barred from seeking contribution from the settling PRPs and thus face potentially disproportionate liability."); Cannons Engineering Corp., 899 F.2d at 91 ("Congress explicitly created a statutory framework that left nonsettlors at risk of bearing a disproportionate amount of liability."); Union Gas Co., 743 F. Supp. at 1152 ("[I]f the settlor pays less than its proportionate share of liability, the non-settlors, being jointly and severally liable, must make up the difference.").
The scope of the contribution protection is defined by the matters addressed in the settlement, i.e., the protection only extends to those matters addressed. Akzo Coatings of America. Inc., 842 F. Supp. at 271; Union Gas Co., 743 F. Supp. at 1153. In the present case, the Consent Decree, i.e., a judicially approved settlement, specifically defines the "matters addressed" for purposes of contribution protection. A "definition of matters addressed . . . clarifies the extent of the contribution protection." Southeastern Pa. Transp. Auth., 235 F.3d at 823. In this case, the "matters addressed" in the contribution protection section explicitly encompasses all response costs previously incurred by the United States, Pennsylvania, or any other person with respect to the Site.
The First Circuit has suggested that the presence of explicit provisions for "matters addressed" is preferable to the absence of such language. United States v. Charter International Oil Co., 83 F.3d 510, 517 n. 9 (1st Cir. 1996) ("The absence of specific language concerning `matters addressed' might be thought to be of concern to the EPA [Environmental Protection Agency] and the public. Having the scope of `matters addressed' specifically agreed upon should lead to greater certainty and finality.").
Alcan's claims for contribution stem from response costs incurred by the United States at the Site and encompassed by the 1995 judgment against Alcan. Alcan's claims plainly fall within the scope of the Consent Decree's contribution protection for "all response actions taken . . . [or] all response costs incurred . . . by the United States . . . or any other person with respect to the Site." Consent Decree, United States v. Amerada Hess. No. 3:CV:00-1912, ¶ 92 (M.D. Pa. 2001).
C. Plaintiff's Jurisdictional Challenge to the Consent Decree
Alcan does not contest the fact that its contribution claims are within the ambit of the "matters addressed" in the contribution protection provision of the Consent Decree. Instead, it mounts an attack on the validity of the contribution protection provision, asserting that "this court did not have jurisdiction over the Response Costs related to historical clean-up at the time
the Consent Decree was entered into by Settling Defendants " PL's Br. in Opp'n to Mot. for
Summ. J. at 3. The premise for this jurisdictional challenge is that all EPA response costs incurred in connection with the Hurricane Gloria incident had been reimbursed long before EPA brought the litigation resolved by the Consent Decree. Therefore, according to Alcan, there was no case or controversy as to the 1985 emergency response action, and the Court lacked jurisdiction to approve the Consent Decree's retrospective contribution protection.
Alcan's claim that the United States "never had nor could it have a claim against the settling defendants" for response costs is inaccurate. PL's Br. in Opp'n to Mot. for Summ. J. at 4. In the case in which the Consent Decree had been entered, the complaint asserted the following: "Since the judgment rendered in favor of the United States by this Court in 1995, EPA has incurred additional response costs totaling approximately $670,000, in connection with the [Butler Mine Tunnel Superfund] Site." Compl. at ¶ 68, United States v. Amerada Hess. No. 3:CV:00-1912 (M.D. Pa. 2000). The United States sought reimbursement for both past and future response costs from the settling defendants. In any event, Mean's position is legally unsound. A consent decree may extend beyond the parameters of the pleadings in a case. As recognized inUnited States v. Davis. 261 F.3d 1, 22 (1st Cir. 2001), "unpleaded claims . . . [can] be part of consent decrees" without running afoul of the Article III limitation on federal court jurisdiction to actual "cases" or "controversies." Accord United States v. Charles George Trucking. Inc., 34 F.3d 1081, 1090-91 (1st Cir. 1994).
The Commonwealth of Pennsylvania also asserted a claim for unreimbursed past response costs.
In Local 93. Int'l Ass'n of Firefighters v. City of Cleveland. 478 U.S. 501, 525 (1986), the Supreme Court held that a consent decree must: (1) "spring from and serve to resolve a dispute within the court's subject matter jurisdiction;" (2) "com[e] within the general scope of the case made by the pleadings;" and (3) "further the objectives of the law upon which the complaint was based." Satisfaction of these three criteria also meets the requirement for a case or controversy. Davis. 261 F.3d at 22 ("[S]atisfying the criteria set forth in . . . [Firefighters] resolves any case or controversy claim."). All three requirements were met by the Consent Decree at issue in the present case.
Regarding the first requirement, the Consent Decree in the present case resolved claims that lie within this Court's subject-matter jurisdiction conferred by CERCLA, 42 U.S.C. § 9613(b), and 28 U.S.C. § 1331. Second, the Consent Decree, like the pleadings, addresses issues involving the release or threat of release of hazardous substances at the Butler Mine Tunnel Site and the costs incurred thereby. The Consent Decree, therefore, clearly falls within the general scope of the pleadings. Lastly, the Consent Decree furthers the objectives of CERCLA by facilitating a broad settlement. See Davis. 261 F.3d at 23. Since all three criteria are met, the case or controversy requirement is satisfied. That the United States could not have sued the settling defendants to recover response costs for which Alcan now seeks contribution is of no significance. As the Court states, "a federal court is not necessarily barred from entering a consent decree merely because the decree provides broader relief than the court could have awarded after a trial." Local 93. Int'l Ass'n of Firefighters. 478 U.S. at 525.
Alcan's challenge to the Consent Decree attempts to distinguish between response costs on the basis of when they were incurred and whether they were fully reimbursed. Alcan's position is not supported by CERCLA's statutory language, its underlying policy, and relevant case law.
Alcan argues that because the United States was fully reimbursed for the $1,302,290.18 incurred for the emergency removal action in response to the 1985 release of hazardous substances, of which Alcan paid $473,790.18 pursuant to the 1995 judgment, contribution protection against subsequent claims is not available. By implication, therefore, Alcan argues that no protection is available against claims for contribution with respect to response costs that have been reimbursed prior to the attempted provision of such protection. This result is nowhere suggested by CERCLA's statutory language, which provides that immunity extends "to claims for contribution regarding matters addressed in the settlement." 42 U.S.C. § 9613(f)(2). There is nothing in the statute that prohibits the parties from extending contribution protection to completed removal actions for which the government has been fully reimbursed. Furthermore, Mean's position would have the perverse result of favoring non-settlors over settlors in certain situations, thereby countering CERCLA's underlying policy of encouraging broad settlements.
The holdings of the Third Circuit in United States v. Southeastern Pa. Transp. Auth., 235 F.3d 817 (3d Cir. 2000), and United States v. Alcan Aluminum. Inc., 25 F.3d 1174 (3d Cir. 1994), also weigh against Alcan's position. In Southeastern Pa. Transp. Auth., 235 F.3d at 821-23, the Third Circuit rejected the contention that contribution protection was limited to the remedies to be undertaken pursuant to a consent decree. Specifically, the court found that the "matters addressed" in the consent decree related to the entire site at issue, even though the settling parties were only responsible for cleaning up one portion of the site pursuant to the consent decree. The court thus recognized that a party can receive contribution protection with respect to a matter for which the government does not make a claim against that party.
In Alcan Aluminum. Inc., 25 F.3d at 1186, the Third Circuit observed that CERCLA "allows the government to immunize a late settlor from an early settlor's contribution suit by settling with the government." It supported this ruling by stating that "[i]n view of the clear and unambiguous language of § 113(f)(2) [of CERCLA, 42 U.S.C. § 9613(f)(2)], . . . the statute's plain language must be considered conclusive." Alcan Aluminum. Inc., 25 F.3d at 1186 n. 17. If the statute's plain language permits the provision of protection against an early settlor's contribution claims, there is no reason why that same language does not permit the provision of protection against a non-settlor's claims. Thus, the Third Circuit's ruling in this case suggests that contribution protection can be provided against the claims of non-settlors that arose prior to a consent decree, regardless of whether the United States was fully reimbursed for an unspecified category of response costs.
To the extent that any explicit distinction is made between settlors and non-settlors with respect to contribution protection, CERCLA's statutory language favors settlors over non-settlors. For instance, while explicitly providing for contribution protection for settlors, CERCLA also explicitly preserves the rights of settlors to seek contribution from non-settlors. 42 U.S.C. § 9613(f)(3)(B) ("A person who has resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement may seek contribution from any person who is not a party to a settlement. . . .").
In United States v. BP Amoco Oil PLC. 277 F.3d 1012 (8th Cir. 2002), Dico, Inc. contested a consent decree because it cut off its contribution claims for almost $6 million in response costs that Dico had already incurred. Unlike this case, Dico had commenced its contribution action before the consent decree was approved by the court. Like Alcan in this case, Dico argued that it was unnecessary for the government to offer the settling defendants protection against contribution claims. The court concluded that whether it was necessary for the government to offer contribution protection was "beside the point," stating that "[b]y providing contribution protection to the settling defendants, the government neither exceeded nor abused its authority." Id. at 1020.
Similarly, in this case, the government acted well within its authority to extend contribution protection for all past costs in order to induce an agreement to provide a final resolution with respect to the Site. Mean's argument to the contrary finds no support in the statutory language, underlying policy, or the case law.
D. Plaintiff's State Law Claim for Contribution
Mean's claim for contribution pursuant to state common law seeks to do an end run around the contribution protection provided by CERCLA. Such state law claims would "eviscerate § 9613(f)(2)," Cannons Engineering Corp., 899 F.2d at 92 (holding that an indemnification claim is barred by CERCLA), and "utterly frustrate" Congress's intent to encourage quick settlements of CERCLA actions. Pretty Products. Inc., 780 F. Supp. at 1495-96 (holding that a state indemnification claim is "merely a disguised claim for contribution" that is preempted by CERCLA). The Third Circuit has found that "common law claims [for contribution] are preempted by CERCLA[, 42 U.S.C. § 9613(f)]," In re Reading Co., 115 F.3d 1111, 1117 (3d Cir. 1997), because there is an actual conflict between such common law claims and CERCLA. Accordingly, CERCLA preempts Alcan's state law claim for contribution in the present case. III. Conclusion
Mean's claims for contribution fall within the scope of "matters addressed" in the Consent Decree. The Consent Decree does not abridge the Article III requirement for a case or controversy, and Alcan's claim for contribution pursuant to state law is preempted by federal law. Accordingly, Alcan's federal and state law claims for contribution are barred by the contribution protection provided under the Consent Decree and CERCLA. Therefore, the settling defendants' motion for summary judgment will be granted. An appropriate Order is attached.
ORDER
NOW, THIS 19th DAY OF SEPTEMBER, 2003, for the reasons set forth in the foregoing Memorandum, IT IS HEREBY ORDERED THAT:1. The Settling Defendants' Motion for Summary Judgment (Dkt. Entry 6) is GRANTED. 2. The Clerk of Court is directed to enter judgment in favor of the following defendants: Amerada Hess Corporation; Avis Rent A Car System, Inc.; Buckeye Pipeline Company; CBS Corporation (formerly Westinghouse); Caterpillar, Inc.; Chevron USA, Inc. (for Gulf Oil Corporation and Texaco, Inc.); Consolidated Rail Corporation (now CSX); Crucible Materials Corporation; Eveready Battery Company, Inc.; the Hertz Corporation; Mack Trucks, Inc.; Miller Brewing Company; Mobil Oil Corporation (now Exxon-Mobil); Niagra Mohawk Power Corporation; Ogden Aviation Terminal Services, Inc.; Pharmacia Upjohn Company; Reynolds Metals Company; Signature Flight Support (formerly Butler Aviation); Textron, Inc. (formerly Avco Corporation); and United Parcel Service, Inc. 3. A telephonic status conference with counsel for Alcan and counsel for the remaining defendants will be conducted on October 24, 2003 at 3:00 p.m. Counsel for Alcan shall be responsible for making the arrangements for the conference call.