United States v. Shaffer Equipment Co.

158 F.R.D. 80, 31 Fed. R. Serv. 3d 212, 39 ERC (BNA) 1904, 1994 U.S. Dist. LEXIS 14285
CourtDistrict Court, S.D. West Virginia
DecidedSeptember 27, 1994
DocketCiv. A. No. 5:90-1195
StatusPublished
Cited by6 cases

This text of 158 F.R.D. 80 (United States v. Shaffer Equipment Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. West Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Shaffer Equipment Co., 158 F.R.D. 80, 31 Fed. R. Serv. 3d 212, 39 ERC (BNA) 1904, 1994 U.S. Dist. LEXIS 14285 (S.D.W. Va. 1994).

Opinion

MEMORANDUM OPINION AND ORDER

HALLANAN, District Judge.

I. BACKGROUND

This matter is before the Court via the United States of America’s Motion to Enter Proposed Consent Decrees.

On July 8, 1994 consent decrees between the United States of America (United States) and Defendants Anna Shaffer and Shaffer Equipment Company (Shaffer), the United States and Defendant Berwind Land Company (Berwind), and the United States and Defendant Johns Hopkins University (Johns Hopkins) were lodged with this Court. Public notice of their lodging was published in the Federal Register on July 21, 1994 and a thirty day comment period began on that date (See 59 Fed.Reg. 37265), pursuant to the policy of the United States Department of Justice and consistent with 28 C.F.R. Section 50.7 and 42 U.S.C. Section 9622(d)(2). The comment period closed on August 22, 1994 and no comments were received on the proposed consent decrees. Therefore, the Court is now prepared to rule on the instant Motion.

The approval of a CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. Section 9601, et seq., as amended) consent decree is committed to the informed discretion of the District Court. United States v. Akzo Coatings of America, Inc., 949 F.2d 1409, 1423-24 (6th Cir.1991); United States v. Cannons Engineering Corp., 899 F.2d 79, 84 (1st Cir.1990); United States v. Hooker Chemical & Plastics Corp., 776 F.2d 410, 411 (2d Cir.1985). “Before approving a CERCLA settlement the Court must be convinced that it is fair, adequate, and reasonable, and consistent with the Constitution and the mandate of Congress.” City of New York v. Exxon Corp., 697 F.Supp. 677, 692 (S.D.N.Y.1988), citing United States v. Conservation Chemical Co., 628 F.Supp. 391, 400 (W.D.Mo.1985).

[83]*83The District Court, however, must accord deference to the EPA’s expertise and its determination that the settlement is appropriate. United States v. Cannons Engineering Corp., 720 F.Supp. 1027, 1036 (D.Mass. 1989), aff'd, 899 F.2d at 84. The Court, therefore, “does not have the power to modify a consent decree; it may only approve or reject it.” Id. citing United States v. Jones & Laughlin Steel Corp., 804 F.2d 348 (6th Cir.1986); Walsh v. Great Atlantic & Pacific Tea Co., 726 F.2d 956, 965 (3rd Cir.1983); Officers for Justice v. Civil Service Commission, 688 F.2d 615, 630 (9th Cir.1982).

A. THE MINDEN SITE CLEANUP

At the outset, the Court will comment that it fully recognizes that this whole matter began with the release and threatened release of polychlorinated biphenyls (PCBs) at the Shaffer Equipment Site in Minden, West Virginia, for which these Defendants are by all accounts responsible. Unfortunately, this matter does not end, as it should have, with the named Defendants in this case.

The Environmental Protection Agency (EPA) and the Department of Justice (DOJ) have incurred at least six million four hundred seventy-five thousand dollars ($6,475,-000) in response costs for attempting to eliminate the release or threatened release of hazardous substances from the Shaffer Equipment Site in Minden, Fayette County, West Virginia (the Site). Under CERCLA, the United States sought reimbursement for the full amount of these response costs from Defendants Shaffer, Berwind, and Johns Hopkins.

At the outset of this action, the United States appeared to have a good case for reimbursement of their removal, remedial and other costs as the Defendants are arguably persons liable under CERCLA. In its complaint the United States alleged, among other allegations, that Shaffer, the current owner of the Site, and Berwind are liable persons “who at the time of disposal of any hazardous substance owned or operated a facility in which hazardous substances were disposed of.” 42 U.S.C. Section 9607(a)(2). The United States also alleged that Johns Hopkins is a “person who by contract, agreement, or otherwise arranged for disposal or treatment ... of hazardous substances owned or possessed by such a person.” 42 U.S.C. Section 9607(a)(3).

The consent decrees that the United States moves the Court to enter reflect a total monetary settlement value of seven hundred twenty-five thousand dollars ($725,-000). This amount is substantially less than the costs incurred by the United States in cleaning up the Site.

II. REASONS TO ACCEPT SETTLEMENT

Although the Court is prepared to enter the proposed consent decrees, it feels compelled to comment on the vast discrepancy between costs incurred and those recovered. It is the Court’s opinion that in the case of each Defendant, the United States’ mismanagement of this entire matter sabotaged its potential recovery of response costs from responsible persons, leaving the bulk of these costs to be born by the Superfund as established by CERCLA. See Superfund Amendments and Reauthorization Act of 1986, Pub.L. 99-499, Oct. 17, 1986, 100 Stat. 1613 (codified as amended in scattered sections of 10 U.S.C., 26 U.S.C., 29 U.S.C. and 42 U.S.C.), as amended. The Court has observed a tendency on the part of the EPA to treat this appropriation as though it is manna from heaven to be thrown around at will. The Court would like to remind all who are involved in this ease that the Superfund is nothing more than an environmental tax on certain corporations which ultimately lands squarely on the rest of us. See Superfund Revenue Act of 1986, Pub.L. 99-499, Title V, Oct. 17,1986,100 Stat. 1760 (codified as amended in scattered sections of 26 U.S.C. and 42 U.S.C.), as amended.

A THE “CARON PROBLEM”

Not the slightest in a series of blunders by the EPA is the fact that the EPA’s first chosen method for removal of hazardous substances from the Site, solvent extraction, proved unsuccessful, after an expenditure of one million two hundred thirty five thousand dollars ($1,235,000). The solvent extraction method, a new and relatively unestablished [84]*84technology, was chosen by Robert E. Caron, the EPA’s “On Scene Coordinator.” Mr. Caron is a man who has misrepresented his academic credentials and achievements throughout his career and subsequent to this case was convicted of perjury, specifically making material false declarations in violation of 18 U.S.C. Section 1623.

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158 F.R.D. 80, 31 Fed. R. Serv. 3d 212, 39 ERC (BNA) 1904, 1994 U.S. Dist. LEXIS 14285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-shaffer-equipment-co-wvsd-1994.