Atlantic Richfield Co. v. American Airlines, Inc.

98 F.3d 564, 1996 WL 592141
CourtCourt of Appeals for the Tenth Circuit
DecidedOctober 16, 1996
DocketNos. 94-5061, 94-5062, 94-5079 and 94-5099
StatusPublished
Cited by12 cases

This text of 98 F.3d 564 (Atlantic Richfield Co. v. American Airlines, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Atlantic Richfield Co. v. American Airlines, Inc., 98 F.3d 564, 1996 WL 592141 (10th Cir. 1996).

Opinion

BRISCOE, Circuit Judge.

Atlantic Richfield Co. (ARCO), one of several parties responsible for a hazardous waste site, settled a lawsuit brought by the Environmental Protection Agency (EPA) and then brought these consolidated contribution actions against other responsible parties to recover a share of the cleanup costs under § 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9657. Several defendants appeal the district court’s judgment that ARCO is entitled to contribution for the money it must pay to the EPA for that agency’s oversight of the cleanup and for attorney fees incurred in negotiating the consent decree with the EPA. ARCO cross-appeals the court’s failure to award ARCO attorney fees incurred in locating potentially responsible parties, and the court’s apportionment of fees paid to the settlement judge.

We affirm the district court’s ruling that ARCO is entitled to recover for its payment of the EPA’s oversight costs, but reverse the judgment allowing recovery of attorney fees incurred by ARCO in negotiating the consent decree. On the cross-appeal, we affirm the district court’s ruling on attorney fees and the court’s apportionment of the fees paid to the settlement judge.

[566]*566Facts

The hazardous waste site that is the subject of this appeal is a 6.2 acre tract near Tulsa, Oklahoma, known as the Glenn Wynn site. It is part of a larger tract that was the site of a Sinclair Refining Company refinery until 1952. ARCO acquired a portion of the refinery site in a merger with Sinclair in 1969, and sold it in 1987. The Glenn Wynn site was leased to a waste oil reclamation business from 1964 through mid-1982, and defendants-appellants are among the parties who generated waste materials that were delivered to the site during that time.

In 1986, the EPA identified the entire refinery site as a Superfund site under CERCLA and placed it on the National Priorities List. The EPA and the Oklahoma State Department of Health conducted a Remedial Investigation and Feasibility Study, after which the EPA issued a Record of Decision requiring excavation and off-site thermal destruction of sludges from the Glenn Wynn site, and stabilization and solidification of sludges from the rest of the refinery site.

The EPA and ARCO negotiated a consent decree, which was filed in May 1989, under which ARCO agreed to implement the entire remedy for the Glenn Wynn site subject to oversight by the EPA, to pay the costs incurred by the EPA in response to the site contamination, and to pay for the EPA’s future oversight of ARCO’s implementation of the remedy. The sludge at the Glenn Wynn site was cleaned up to the EPA’s satisfaction by June 1993.

ARCO brought these consolidated contribution actions to recover from other responsible parties a share of the costs it incurred in cleaning up the Glenn Wynn site. Among the defendants were appellants, companies whose waste oil was delivered to the Glenn Wynn site and who were designated as Group I.1 The Group I defendants include the following: Baker Hughes Incorporated; Borg-Warner Corporation; Burgess-Norton Manufacturing Co. (a Division of Amsted Industries Incorporated); Chief Supply Corporation (sued as Chief Chemical Supply and Chief Chemical & Supply, Inc.); Crane Carrier Corp.; Dover Corporation; Groendyke Transport, Inc.; H.W. Allen Co., fik/a MK & 0 Coach Lines; Jerry Inman Trucking, Inc.; Kansas Industrial Environmental Services, Inc.; McDonnell Douglas Corporation; Pac-car, Inc.; Phillips Petroleum Company; Ramsey Winch Company; Ryder Truck Rental, Inc. (for itself and as successor to Wileo Truck); The Uniroyal Goodrich Tire Company; Webco Industries, Inc.; and Whirlpool Corporation. Appellants stipulated to liability for their proportionate share of the costs of cleaning up the site, but contended some of the costs sought by ARCO were not recoverable under CERC-LA.

Appellants moved for summary judgment, contending ARCO was not entitled to recover its attorney fees and the costs of EPA oversight of the cleanup. The district court ruled that ARCO could not recover attorney fees incurred in the litigation, but could recover any nonlitigation attorney fees that were necessary to the cleanup. The court also ruled that whether ARCO could recover the EPA oversight costs it was obligated to pay under the consent decree was a question of fact.

After trial, the district court found ARCO had incurred $9,007,069.56 in reasonable and necessary costs of response for the Glenn Wynn site. This sum included nonlitigation attorney fees in the amount of $29,108.60 and the costs of EPA oversight of ARCO’s cleanup in the amount of $420,765, but did not include litigation attorney fees. The court also found ARCO was entitled to prejudgment interest of $155,943. However, the court did not enter a money judgment in favor of ARCO because it had received $9,607,744.16 in settlements with defendants other than appellants. The court ruled appellants would be liable for 90% of any future costs beyond the overage, less credits for remediation costs already paid by four defendants, and that ARCO would be liable for the remaining 10%.

[567]*567EPA Oversight Costs

Appellants contend the district court erred in ruling that ARGO was entitled to contribution for the money it must pay to the EPA for the agency's oversight of ARGO's cleanup of the site. Relying on United States v. Rohm & Haas Co., 2 F.3d 1265 (3d Cir.1993), they argue the costs of EPA oversight of a private party cleanup are not costs for which they can be held liable under § 107(a) of CERCLA, and are therefore not recoverable by ARCO under § 113(f). We disagree.

Under CERCLA. the government may either conduct cleanups itself or permit or require responsible parties to do so. CERC-LA §t 104(a) and 106 (42 U.S.C. §~ 9604(a) and 9606). Liabifity for costs incurred by the government or a private party in cleaning up a site is imposed by § 107(a)(4) (42 U.S.C. § 9607(a)(4)), which provides responsible parties are 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; [and] (B) any other necessary costs of response incurred by any other person consistent with the national contingency plan." Under § 113(f) (42 U.S.C. § 9613(f)), "[a]ny person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title."

The terms "response," "removal," and "remedial action" are defined in CERCLA § 101(42 U.S.C. § 9601). Responses consist of removals and remedial actions and "enforcement activities related thereto." CERCLA § 101(25). In general, a "removal" is a short-term response and a "remedial action" is a long term response. See CERC-LA § 101(23) and (24); Daigle v. Shell Oil Co., 972 F.2d 1527, 1533-34 (10th Cir.1992).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Abrams v. Ciba Specialty Chemicals Corp.
659 F. Supp. 2d 1225 (S.D. Alabama, 2009)
Raytheon Aircraft Co. v. United States
532 F. Supp. 2d 1306 (D. Kansas, 2007)
United States v. E.I. DuPont De Nemours & Co.
432 F.3d 161 (Third Circuit, 2005)
Young v. United States
394 F.3d 858 (Tenth Circuit, 2005)
City of Wichita v. Aero Holdings, Inc.
177 F. Supp. 2d 1153 (D. Kansas, 2000)
Sealy Connecticut, Inc. v. Litton Industries, Inc.
93 F. Supp. 2d 177 (D. Connecticut, 2000)
Browning-Ferris Industries of Illinois, Inc. v. Ter Maat
13 F. Supp. 2d 756 (N.D. Illinois, 1998)
Ekotek Site PRP Committee v. Self
1 F. Supp. 2d 1282 (D. Utah, 1998)
Kane v. Capital Guardian Trust Co.
953 F. Supp. 1200 (D. Kansas, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
98 F.3d 564, 1996 WL 592141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atlantic-richfield-co-v-american-airlines-inc-ca10-1996.