Shell Oil Co. v. United States

93 Fed. Cl. 153, 72 ERC (BNA) 1370, 2010 U.S. Claims LEXIS 277, 2010 WL 2222257
United States Court of Federal Claims·Decided May 27, 2010·No. No. 06-141C·Published·Cited by 5 cases

Opinion

OPINION and ORDER

SMITH, Senior Judge:

This case involves contracts between Oil Companies and the United States that were entered into during the Second World War. At that time, the Government agreed to purchase aviation gasoline from the Oil Companies to aid in the war effort. Long after the War, and long after the expiration of the contracts, the Oil Companies were held liable for the costs of cleaning up the waste produced during the production of the gasoline. This Court held that the contracts required the Government to indemnify the Oil Companies from such costs and found the Government liable for the costs incurred as a result of the waste clean up. The Oil Companies now bring this Motion for Summary Judgment seeking reimbursement of the full costs associated with the clean up. However, the Government contends that the Oil Companies are not entitled to recover all costs incurred. After full briefing, oral argument, and careful consideration, the Court hereby GRANTS IN PART Plaintiffs’ Motion for Summary Judgment as to Damages for the reasons set forth below.

I. Introduction

During World War II (“WWII”), the United States entered supply contracts with the Oil Companies for the production of massive quantities of 100-octane aviation gasoline (“avgas”) for use in airplane engines. Long after WWII ended and the contracts expired, Plaintiffs were held liable for the costs of cleaning up the waste produced during the production of avgas.1 Plaintiffs brought this action seeking reimbursement of those costs from the United States.

After considering motions from both parties, this Court denied the Government’s motion to dismiss and granted the Oil Companies’ cross-motion for summary judgment as to liability. Shell Oil Co. v. United States, 80 Fed.Cl. 411 (2008). The Court held that the costs incurred by the Oil Companies under the CERCLA cleanup were “charges” within the meaning of the “Taxes” clause of the aviation gasoline supply contracts. Id. at 415-16. Further, the clause of the contracts requiring the United States to reimburse the Oil Companies for charges related to the production of avgas was not limited to costs incurred during contract performance and thus was applicable to CERCLA cleanup costs incurred after contract performance. Id. at 416-18. Finally, the Court held that the Anti-Deficiency Act (ADA) did not bar claims of Oil Companies for government reimbursement of CERCLA cleanup costs, as the contracts were authorized by the First War Powers Act and various executive orders and, thus, fell within ADA exception for appropriations “authorized by law.” Id. at 418-20.

The sole remaining issue now before the Court is the amount of damages to be awarded to Plaintiffs. Plaintiffs claim that this Court’s liability ruling, various Government stipulations and the California District Court’s findings establish a damage amount equal to the full amount of clean up costs. On the other hand, the Government has taken the position that the Oil Companies are not entitled to recover all of the costs they incurred cleaning up the McColl Site. Specifically, the Government contends that the costs associated with cleaning up some of the acid sludge were not incurred “by reason of’ the production of avgas because some of the acid sludge arising originally from the production of avgas was then reused in other [155]*155products before being dumped at the MeColl Site.

II. Facts

Avgas was a blend of several different chemical elements, the production of which necessarily produced sulfuric acid waste. See, e.g., United States v. Shell Oil Co., No. 91-0589,1995 U.S. Dist. LEXIS 19778, at *7. Specifically, “[t]wo byproducts, acid sludge and spent alkylation acid, necessarily resulted from the production of avgas.” Def. Liability Fact Resp. ¶ 12 (quoting Shell, 1995 U.S. Dist. LEXIS 19778, at *7), PI. Damages App. 39; see also Stipulations between the United States and the Oil Companies in United States v. Shell Oil Co., No. 91-0589(RJK) (C.D.Cal.) (“Stipulation”) ¶¶323, 493-96, PI. Damages App. 34. The Oil Companies’ refineries “used substantial amounts of 98% sulfuric acid as a catalyst to produce alkylate, a major component of avgas.” Stipulation ¶ 493, PI. Damages App. 36. As the alkylate was produced, the concentration of the sulfuric acid would be reduced, and when it “reached a concentration in the neighborhood of 87-90% in the alkylation unit, it no longer served its catalytic function and was replaced.” Id.

This “spent alkylation acid” was then “used in treating units in the refinery, ... [resulting in] the production of acid sludge.” Id. Spent alkylation acid was also used for “the acid treatment of certain components before they entered the alkylation process in order to remove impurities and improve their quality.” United States v. Shell Oil Co., 13 F.Supp.2d 1018, 1024 (C.D.Cal.1998). In addition, some of the spent alkylation acid was reprocessed and reused in the production of other products such as motor gasoline and kerosene. Stipulation ¶ 496, PI. Damages App. 37. Eventually, the Oil Companies were producing so much spent alkylation acid that they could not reuse all of it in their own refineries and the facilities for reprocessing the acid were insufficient. The Oil Companies then dumped large quantities of spent alkylation acid at the McColl Site. United States v. Shell Oil Co., 294 F.3d 1045, 1050-51 (9th Cir.2002); see also Shell Oil Co. v. United States, 80 Fed.Cl. 411, 417 (2008).

All of the uses of spent alkylation acid produced acid sludge. Shell, 13 F.Supp.2d at 1024. The acid sludge “generally could not be put to further use within the refineries.” Stipulation ¶ 324, PI. Damages App. 34-35. Therefore much of it was dumped at the MeColl Site. Stipulation ¶ 493, PI. Damages App. 34.

The Government stipulated in the CERC-LA action that “[m]ost of the acid waste at the MeColl Site began as fresh sulfuric acid ... that was used in the alkylation units to produce alkylate for [avgas].” Stipulation 11496, PI. Damages SJ App. 37; Def. Liability Fact Resp. ¶23, PI. Damages App. 40. The Government has also stated that the remaining waste was related to benzol production for which the Government has already been held liable.2 Def. Liability Fact Resp. ¶ 24, PI. Damages App. 40; see also Shell, 294 F.3d at 1051; Shell, 13 F.Supp.2d at 1023.

Based on these facts, the district court in the CERCLA case found that the quantity of sulfuric acid waste at the MeColl Site, both spent alkylation acid and acid sludge, was “the same (or slightly greater) ... irrespective of whether the Oil Companies had chosen to make secondary use of the acid for non-avgas products.” Shell, 13 F.Supp.2d at 1026. The court found that there was no “persuasive evidence that the secondary use of the spent alkylation acid substantially aggravated the waste cleanup problems at the MeColl Site beyond what they would have been in the absence of that secondary use_” Id. Accordingly, the court concluded that “100 percent of the non-benzol waste at the MeColl Site is attributable to the avgas program.” Id.; see also id. at 1023 (both the nonbenzol acid sludge and the spent alkylation acid “can be traced to the production of avgas”).

III. Standard of Review

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Shell Oil Co. v. United States, 93 Fed. Cl. 153, 72 ERC (BNA) 1370, 2010 U.S. Claims LEXIS 277, 2010 WL 2222257 (uscfc 2010).

93 Fed. Cl. 153 (Shell Oil Co. v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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