United States v. Hercules, Inc.

961 F.2d 796, 1992 WL 73606
CourtCourt of Appeals for the Eighth Circuit
DecidedApril 14, 1992
DocketNo. 91-1887
StatusPublished
Cited by24 cases

This text of 961 F.2d 796 (United States v. Hercules, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hercules, Inc., 961 F.2d 796, 1992 WL 73606 (8th Cir. 1992).

Opinion

HANSEN, Circuit Judge.

Hercules, Inc. appeals from the decision of the district court1 that approved a consent decree involving a hazardous waste site in Jacksonville, Arkansas. The district court decision is reported as United States v. Vertac Chemical Corp., 756 F.Supp. 1215 (E.D.Ark.1991). We affirm.

I. Background

The hazardous waste site in Jacksonville, Arkansas, involved in this case was previously the location of a herbicide and pesticide manufacturing plant operated by Ver-tac Chemical Corporation (Vertac) and also by its prior owner, Hercules, Inc. (Hercules). Although Vertac was found to be a responsible party for the resulting environmental harm at the Jacksonville site, recovery from Vertac is limited because it sold most of its assets and has been placed into receivership. Appellant Hercules was named as a potentially responsible party and the appellees collectively referred to as the “Phoenix parties” were also identified as potentially responsible. The Phoenix parties consist of Phoenix Capital Enterprises, Inc., InterCapital Industries, Inc., Inter-Ag Corporation, C.P. Bomar, Jr., and J. Randal Tomblin. The potential liability of the Phoenix parties stems from their respective relationships with Vertac. The extensive factual background of this case has been well-developed in several district court decisions and need not be repeated here. See United States v. Vertac Chem. Corp., 756 F.Supp. 1215 (E.D.Ark.1991); [798]*798United States v. Vertac Chem. Corp., 588 F.Supp. 1294 (E.D.Ark.1984); United States v. Vertac Chem. Corp., 489 F.Supp. 870 (E.D.Ark.1980).

The Jacksonville site has been the subject of litigation since 1980. The United States filed suit against Hercules and Ver-tac, alleging liability under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6973, the Clean Water Act, 33 U.S.C. § 1251 et seq., the Refuse Act, 33 U.S.C. § 407, and Arkansas law. The United States also filed suit against the Phoenix parties alleging liability under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), 42 U.S.C. § 9607(a), RCRA, and the Federal Priority Statute, 31 U.S.C. § 3713. These actions were consolidated with a suit by the Arkansas Department of Pollution Control and Ecology (ADPCE) against Hercules and Vertac and were set for trial.

Before trial of the consolidated actions, the United States and the ADPCE entered into a proposed consent decree with the Phoenix parties. The proposed decree resolves the liability of the Phoenix parties with respect to the Jacksonville site in' return for their payment of $1,840,000 for cleanup costs and $126,000 for studies of the natural resource damage at the site. The corporate Phoenix parties must also pay 33% of all future pretax profits earned through the year 2000 and 40% of the liquidation value of Phoenix Capital Enterprises in the event it is liquidated before the year 2000. In addition, the corporate Phoenix parties must limit salaries and fringe benefits, must comply with a set maximum debt-to-equity ratio, and must submit an annual audit prepared by a certified public accountant. After publicizing the proposal for comment and receiving objections by Hercules and Dow Chemical Company, the United States moved for entry of the proposed decree. Hercules opposed the motion. The district court approved the proposed decree, finding it fair, reasonable, and consistent with CERCLA and not prohibited by CERCLA. Hercules now appeals from the district court’s decision.

II. Discussion

Hercules contends that CERCLA § 122, 42 U.S.C. § 9622, limits the authority of the United States, acting through the Attorney General, to settle cases and that the settlement with the Phoenix parties does not comply with the requirements contained in CERCLA § 122. Hercules also argues that the settlement is not fair, reasonable, or consistent with CERCLA.

A. CERCLA § 122

Pursuant to 28 U.S.C. § 516, the Attorney General has exclusive authority and plenary power to control the conduct of litigation in which the United States is involved, unless Congress specially authorizes an agency to proceed without the supervision of the Attorney General. F.T.C. v. Guignon, 390 F.2d 323, 324 (8th Cir.1968). The Attorney General’s discretionary authority includes the power to enter into consent decrees and settlements. Swift & Co. v. United States, 276 U.S. 311, 331-32, 48 S.Ct. 311, 316-17, 72 L.Ed. 587 (1928). The breadth of this power is well illustrated by the Supreme Court’s decision in Swift. In that case, the appellants argued that the Attorney General exceeded his authority by entering into the consent decree in question. Id. at 331, 48 S.Ct. at 316-17. The Court did not decide whether the decree could be vacated for such lack of authority because the Court did “not find in the statutes defining the power and duties of the Attorney General any such limitation on the exercise of his discretion.” Id. The Court stated that the Attorney General’s power to enter into consent decrees includes “the power to make erroneous decisions as well as correct ones.” Id. at 332, 48 S.Ct. at 317.

Congress does have the authority to limit the power of the Attorney General. United States v. California, 332 U.S. 19, 27, 67 S.Ct. 1658, 1662, 91 L.Ed. 1889 (1947). The Supreme Court has indicated, however, that the statutory authority of the Attorney General to control litigation is not diminished without a clear and unambiguous directive from Congress. See id.) United States v. Morgan, 222 U.S. 274, 282, 32 S.Ct. 81, 82, 56 L.Ed. 198 (1911). Other courts that have more directly ad[799]*799dressed this issue consistently require a clear and unambiguous expression by Congress. See, e.g., United States v. International Union of Operating Eng’rs, 638 F.2d 1161, 1162 (9th Cir.1979), cert. denied, 444 U.S. 1077, 100 S.Ct. 1026, 62 L.Ed.2d 760 (1980); Marshall v. Gibson’s Prods., Inc., 584 F.2d 668, 676 n. 11 (5th Cir.1979) (citation omitted); United States v. Orkin Exterminating Co., 688 F.Supp. 223, 224-25 (W.D.Va.1988) (citations omitted).

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Bluebook (online)
961 F.2d 796, 1992 WL 73606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hercules-inc-ca8-1992.