Appendices — Mayco Oil & Chemical Co. v. Transtech Industries, Inc.

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APPENDIX A

UNITED STATES COURT OF APPEALS

THIRD CIRCUIT

No. 92-5636

TRANSTECH INDUSTRIES, INC., a Delaware Corporation;

KIN-BUC, INC., a Jersey Corporation; and FILCREST REALTY,

INC., a New Jersey Corporation,

Plaintiffs-Appellees,

V.

A&Z SEPTIC CLEAN; AAA TANK; A ALFANTE; ABM

DISPOSAL SERVICE; AM ENVIRONMENTAL; A. E. STANLEY

MANUFACTURING COMPANY; ABSOLUTE FIRE

PROTECTION, INC.; ACCURATE FORMING; ACTIVE OIL

SERVICE; ADCHEM CORP.; ADRON, INC.; AERO

NUTRONICS FORD; AETNA CHEMICAL CORPORATION; AIR

PRODUCTS & CHEMICALS, INC.; AKZO CHEMICALS, INC-.;

ALCAN ALUMINUM CORPORATION; ALCOLAC INC.; ALL

COUNTY SEPTIC; ALL COUNTY SERVICE CORP.;

ALLIED-SIGNAL INC.; ALPHA METALS, INC.; AMER. BOOK

STRATFORD; AMERADA HESS- CORP.; AMERICAN

CYANAMID CO.; AMERICAN PRODUCTS CO., INC;

AMERICAN STANDARD INC.; AMERICAN TRAILER;

ANCHOR MOTOR FREIGHT; ANDY FIORE & SONS; ARCO

PETROLEUM PRODUCTS; ASARCO, INC.; ASHLAND OIL

INC.; ASSOCIATED MARBLE CO.; ASTRO PAK

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CORPORATION; AT&T TECHNOLOGIES, INC.; ATI, INC.;

ATLAS PAINTS; AUTOMATIC CONNECTOR, INC.; AVANTE

PRODUCTS CORP.; AXTON-CROSS CO., INC; B&L

INDUSTRIAL SERVICE; BAD PALLET CO.; BARCLAY

CLEANING CO.; BARON BLAKESLEE; BAROUH EATON

ALLEN CORP.; BASF CORP.; BATES MANUF. CO.; BAXTER

HEALTHCARE CORP.; BARONNE BARR. & DRUM; BEACON

FAST FREIGHT CO., INC.; BECTON, DICKINSON AND CO.;

BENDIX CORP.; BENJAMIN MOORE & CO.; BERGEN

MACHINE & TOOL; BERKELEY CHEM. CO.; BEST DISP. &

DRUM SERV.; BEST DISPOSAL; BEST FOODS RESEARCH

CNTR.; BFT; BIDDLE SAWYER CORP.; BIG 3 TRUCK PLAZA;

BIOCRAFT LAB. INC.; BOC GROUP INC.; BORDEN, INC.;

BORG-WARNER CHEMICALS, INC.; BOROUGH OF

WALLINGTON; BOSTITCH INC.; BROOKDALE SHOP-RITE;

BROWN STONE INN; BROWNING-FERRIS IND. OF ELIZ. NJ;

C&R TRUCKING, CO.; CPS CHEMICAL CO.; CJR CHEMICAL

CO.; CPC INTER’L, INC.; CADBURY CO.; CAN MEG CO.;

CARBOLINE CO.; CARPENTER TECH. CORP.; CECOS

INTERN’L, INC.; CENTRAL JERSEY ASSOC.; CENTRAL

JERSEY DISPOSAL; CESCO COMPANY; CHAS PETZER INC.;

CHEM CLEANING SERV.; CHEM TROL POLLUTION;

CHEMICAL CONTROL CO.; CHEMICAL LEAMAN TANK

LINES, INC.; CHEMLINE CORP.; CHEMQUID DISPOSAL INC.;

CHESEBROUGH-PONDS; CHEVRON CHEMICAL CO.:

CHEVRON U. S.A. INC.; CIBA-GEIGY CORP.; CITY SERV.

OIL CO.; CLAIROL, INC.; CLARK HAULERS; CLEAN WATER,

INC.; CLEVELAND WRECKING; COASTAL SERVICES, INC.;

COASTAL TANK LINES; COCA-COLA FOODS;

COLGATE-PALMOLIVE CO.; COLONY FURNITURE CO.;

COLUMBIA CORRUGATED; COLUMBIAN RIBBON;

S |

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CON-LUX COATINGS, INC.; CONTINENTAL CAN CO., INC.:

CONTINENTAL CHEM CO.; CONTINENTAL OIL; COOPER

INDUSTRIES, INC.; COVINO’S INDUSTRIAL DISP. SERV..,

INC.; CRANE & CO. IN; CURTIS NUCLEAR:

CURTISS-WRIGHT CORP.; CUSTOM BUILDERS; CUSTOM

DISPOSAL; D&C CONTRACTING; DART INDUSTRIES:

DARWORTH CO.; DATA GENERAL CORP.; DELCO REMY;

DELEET MERCHANDISING CORP.; DELMARVA IND. CORP.:;

DIBELLA SANITATION; DOCK WATCH QUARRY; DONADIA

BROTHERS; DONALD HARTMAN; THE DOW CHEMICAL

CO.; DREW CHEM CORP.; DUANE MARINE CORP.; DUBOIS

CHEMICALS, INC.; DURO-TEST CORP.; EJ GAISSER INC.; E.1.

DUPONT DE NEMOURS AND CO., INC.; E.R. SQUIBB &

SONS, INC.; EASTCOAST POLLUTION CONTROL, INC::

EASTERN IND. CORP.; EASTERN INDUSTRIES; ECOLAB,

INC.; EDAL INDUSTRIES, INC.; EGYPTIAN LACQUER:

ELIZABETH DISPOSAL; ELMWOOD TANK & PIPING CORP.:

ENVIRONMENTAL RECOVERY; EQUADORIAN LINE, INC:

EXXON CORP.; FETTE FORD, INC.; FISHER SCIENTIFIC CO.:

FLEXTRAP; FLINTKOTE CORP.; FLOCK INDUSTRIES:

FLORENCE IND. RECONTO; FLUID PACKAGING CO., INC.:

FMC CORP.; FORD MOTOR CO.; FRANK FOGLIA JR.; FRANK

MUGGID BUILDER; FREEHOLD CARTAGE; FRISCH & CO.:

FRITSZCHE D&D; FYN PAINT & LACQUER; GAESS

ENVIRONMENTAL SER.; GAF CORP.; GALAXY CHEMICAL;

GANES CHEMICALS, INC.; GATX TERMINALS CORP.:

GENERAL CABLE CORP.; GENERAL CERAMICS INC:

GENERAL ELECTRIC CO.; GENERAL MOTORS CORP.

GENERAL SEWER SERVICE; GENERAL WAREHOUSE:

GLENWALI; GM ASSEMBLY DIV.; GOODALL RUBBER CO.:

GOODYEAR TIRE & RUBBER CO.; GOULD, INC:

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GREYHOUND CORP.; GUARD ALL CHEMICAL CO., INC.;

GUARDIAN, INC.; GULTON INDUSTRIES, INC.; H&F

CHEMICAL CO.; H&S CHEMICAL CO.; HARDMAN INC;

HATCO CHEMICAL DIVISION; HATFIELD WIRE & CABLE;

HAVEN CHEM.; HENKEL INC.; HERCULES, INC.; HEXCEL

CORP.; HI-PURE CHEMICALS, INC.; HIGH VOLTAGE ENGIN.

CORP.; HIGHWAY DISPOSAL; HOECHST CELANESE CORP. ;

HOFFMANN-LA ROCHE INC.; HOLIDAY INN REST.;

HOWARD FUEL CO.; HOWMEDICA; HPH CONSTRUCTION;

HYDROCARBON RESEARCH, INC.; IBM CORP.; ICI

AMERICAS INC.; ICI UNITED STATES; ILFORD PHOTO

CORP.; IMPERIAL OIL CO., INC.; IMPORTICO, INC.; IND

SURPLUS CHEMICAL INC.; INDUSTRIAL SILVER CO.;

INMONT CHEMICAL; INMONT CORP.; INSFLEX CO.; INSTEL

CORP.; INTER’L FLAVORS AND FRAG., INC.; INTERDATA

CORP.; INTERSTATE CHEM. CO.; IRON OXIDE CORP.; ITT

CORP.; J BASS & CO., INC.; J. FILTRESTO SANIT.; J.M.

HUBER CORP.,; J.T. BAKER, INC.; JAMECO CORP.; JAMECO

INDUSTRIES; JAMES P. HORAN, INC.; JERSEY SANITATION;

JOHN DUSENBERY CO., INC.; JOHN ERRICO DISPOSAL CO.;

JOHN H. COONEY, INC.; JOHNSON & JOHNSON; JOHNSON

MATTHEY, INC.; KAY-FRIES, INC.; KERRY TIRE; KEUFFEL

& ESSER CO.; KEY OIL CO.; KNOLL FINE CHEMICAL;

KOPPERS CO., INC.; KRAFT CONTAINER; KTK CORP.; L&J

DRUM CO.; L.E. CARPENTER & CO.; LAWRENCE

MCFADDEN CO.; LAWSON PRODUCTS, INC.; LEHAND

SALES; LEHIGHTON ELEC., INC.; LEKSI, INC.; LELAND

INDUSTRIES; LELAND TUBE CO.; LEVER BROTHERS CO..;

LINCOLN METALS PRODUCTS; LINDEN MOTOR FRGHT

CO., INC.; LIQUID REMOVAL SER.; LUCAS INDUSTRIES,

INC.; LUMAS CO.; M&F CHEMICAL CO.; M&T CHEMICALS,

Sa

INC.; MAAS & WALDSTEIN; MACARTHUR PETROLEUM:

MADISON TOWNSHIP; MAKAR TRUCKING INC.; MALLA

INC.; MALLINCKRODT CHEM.; MANNON EXCAV. &

PAVING CO., INC.; MARBUN DIVISION; MARISOL, INC.:

MARPAK ASSOC.; MARVIN JONAS INC.; MAYCO OIL &

CHEMICAL; MCGILLON EXCAVATING; MCKAYS

TRUCKING; THE MEARL CORP.; MERCER RUBBER; MERCK

& CO., INC; METRO CONTAINER CO.; METROL OIL &

CHEM. CORP.; METROL PETRO CHEM. CO.; MICHAELS

INDUSTRIAL DISPOSAL; MIDDLESEX CONTAINER:

MIDLAND PROC., INC.; MIDWEST EMERY; MILLMASTER:

MOBILE OIL CORP.; MONARCH CHEMICAL; MONMOUTH

MEDICAL CTR; MONROE CHEMICAL CORP.; MONSANTO

CO.; MONTVAL LABS; MORTON THIOKOL INC.; MUTPIE

TRUCKING; N&N TRUCKING; N. AMER. METAL & CHEM.:

NATIONAL CONVERTERS; NATIONAL GYPSUM CO.:

NATIONAL STARCH & CHEM. CORP.; NEPERA, INC::

NIAGARA SANITATION CO., INC.; NL INDUSTRIES, INC.:

NORTON & SON, INC.; NUTEX CORP.; THE NUTRASWEET

CO.; OAKITE PRODUCTS, INC.; OCCIDENTAL CHEMICAL

CORP.; THE OKONITE CO.; OLIN CORP.; ORGANON, INC.:

THE ORMAND SHOPS, INC.; ORTHO DIAGNOSTICS:

PAMARCO, INC.; PAQUET ONEIDA, INC.; PENN CENTRAL

COR?.; PERK CHEMICAL CO., INC.; PERSONAL PROD. CO.:

PFIZER, INC.; PHARMAC. LABS INC.; PHELPS DODGE

CORP.; PHILIP A. HUNT CHEM.; PIONEER ROOFING CO.:

PISCATAWAY DISPOSAL; PITNEY BOWES, INC.; POINT

PLEASANT HOSPITAL; POLAROID CORP.; POLYMER

MATERIALS, INC.; POPE CHEMICAL CO.; PORTFOLIO ONE,

INC.; PQ CORPORATION; PRINCETON NURSERIES:

PROCEDYNE CORP.; PROCTER & GAMBLE MANF. CO.:

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PUBLIC SERV. ELEC. & GAS CO.; PVO INTERNATIONAL,

INC.; QUAKER CHEMICAL CORP.; QUALITY CONTAINER;

R&R SANITATION; R. W. EAKEN, INC.; RADIAC RESEARCH

CORP.; RAY GUYS TRAILER; RCA CORP.; REAGENT

CHEMICAL & RESEARCH; REICHHOLD CHEMICALS, INC.;

REITER DRUM & BARREL; REVERE COOPER & BRASS.

INC.; REYNOLDS METALS CO.; REHEEM MANUFACTURING

CO.; RICHARDS TRUCKING; RIVERVIEW HOSPITAL;

ROLLINS ENV. SERV. (NJ), INC.; RUPACO PAPER CORP.;

RUSSELL REID CORP.; RUSSELL REID CO.;

RUSSELL-STANLEY CORP.; RUTGERS-THE STATE

UNIVERSITY; RYCOLINE PRODUCTS, INC; S&W

TRUCKING; SAM TRUCKING CO.; SB PENICK COMPANY;

SSS CONSTRUCTION; SAB NIFE, INC.; SAFETY LIGHT

CORP.; SAFETY-KLEEN ENVIROSYSTEMS CO.; SAMSON

TANK CLEANING; SANDOZ CHEMICALS CORP.; SANTY;

SCHERING CORP.; SCIENTIFIC CHEM. PROC.; SCOTT PAPER

CO.; SEALAND ENVRNMTL.; SEALED AIR CORP.;

SEN-DURE PRODUCTS, INC.; SEQUA CORP.; SETON HALL

UNIVERSITY; SHELL CHEMICAL CO.; SHULTON INC.

CONSUMER; SIEGERIED CHEMICAL; SIKA CORP.;

SINCLAIR VALENTINE; SMITH KLINE BECKMAN CORP.;

SOLVENTS DISTILLERS; SOLVENTS RECOV. SERV. OF NJ,

INC.; SOUTHERN CALIF. CHEM. CO., INC.; SPECTRSERV..,

INC.; ST. BARNABAS ME. CNTR.; ST. JOE PAPER CO.,; ST.

THOMAS AQUINAS CL.; STALEY CHEMICAL CO.;

STANDARD TANK CLEAN; STANDARD TOOL & MFG. CO.:;

STANLEY CHEMICAL CO.; THE STANLEY WORKS; STARCH

CONTAINER CO.; STARLIGHT TRADING; STAUFFER

MANAGEMENT CO.; STEPAN COMPANY; SUN RISE

FASHION INC.; SYBRON TRANSITION CORP.; TAPPAN

st hie tie ee ee ee -

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TANKER; TAU LABORATORIES; TENNECO RESINS, INC.:

TEXACO BUTADIENE CO.; TEXACO, INC.; TEXTRON, INC.:

TIME--DC; TIZON CHEMICAL CORP.; TOMS RIVER CHEM.

CORP.; TUCK INDUSTRIES, INC.; U. S. METALS REFINING:

UNION CAMP RESEARCH; UNION CARBIDE CORP.; UNION

TEXTILE; UNIROYAL CHEM. CO., INC.; UNISYS CORP.:

UNITED CARTING; UNITED STATES LINES; UNITED

STATES METALS REFINING CO.; UNITED TECHNOLOGIES

CORP.; UNIVERSAL SANIT.; UOP CHEM.; THE UPJOHN CO.:

US SAMICA CORP.; VAMP CHEM; VANGUARD VENTRON

CHEMICAL; VILLAGE CESSPOOL; VINELAND CHEM. CO..,

INC.; W. W. ANDRESS CO.; WALL TRENDS INC.; WALTER

KIDDE; ‘WALTZ ENTERPRISES; WESTERN UNION:

WESTINGHOUSE ELECTRIC CORP.; WESTON CHEMICAL:

WESTRON CHEMICAL CO.; WHITE CHEMICAL CORP..

WHITE ROSE TEA; WHITMOYER LABS; WINCHESTER

WESTRON; WITCO CHEMICAL CO.; WOODSTEIN &

KLURMAN; Z&W ENTERPRISES, INC.; JOHN DOE (1-500)

STANDARD SPILL; ALUMINUM BILLETS; MACARTHUR

PETROLEUM & SOLVENT CO. INC.; CENTRAL JERSEY

CLNRS; CLEAN SPRAY; JAMES E. MCNULTY; LCP

CHEMICAL & PLAST; LESTER SUMMERS; SAND

GRAVEL-STONE CO.; MEADOWS FACILITY POST 0:

TENNECO CHEM; WESTERN CHEMICAL CO.; GERMAN

SHEPARD; Z & W MAZDA; SYBRON CHEMICALS; UNITED

STATES METAL REFINING CO.; GENERAL SEWER SERVICE

Mayco Oil & Chemical Company; Astro Pak; AT&T Technologies

Inc., by its successor American Telephone and Telegraph Company,

Inc.; Biocraft Laboratories, Inc.; Chesebrough-Pond’s USA Co.:

CPC International, Inc., including Best Foods division and Penick

Corporation successor to $.B. Penick Company; Fluid Packaging

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Co., Inc.; FMC Corporation; Ganes Chemicals, Inc.; General

Electric Company; Hexcel Corporation; Huls America Inc.; IBM

Corporation; John H. Cooney, Inc.; J. T. Baker, Inc.; Lever

Brothers Co.; Marisol, Inc.; Mobil Oil Corp.; Occidental Chemical

Corporation; Phelps Dodge Corporation; Procedyne Corporation;

Procter & Gamble Manufacturing Company; Reynolds Metals

Company; Russell Reid Company; Safety-Kleen Envirosystems

Company; Saft Nife, Inc. (sued as SAB Nife Inc.); Sequa

Corporation (formerly Sun Chemical Corporation); Siegfried

Chemicals; Smithkline Beecham Corporation; Spectraserv, Inc.

(formerly Modem Transportation Co.); Stroh Brewery Company;

Sybron Transition Corp.; Sybron Chemicals, Inc., including as trade

names Gamlen Chemical and Tanatex; and Witco Corporation

(collectively “Settlor-Defendant Appellants”) Appellants

[Filed September 17, 1993}

PRIOR HISTORY:

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY;

(D.C. Civ. No. 90-02578).

COUNSEL: George M. Newcombe, Esquire, David B. Smallman,

Esquire, Elizabeth A. Fuerstman, Esquire, Simpson,

Thacher & Bartlett, 425 Lexington Avenue, New

York, New York 10017 Steven L. Lapidus, Esquire,

Robinson, St. John & Wayne, One Gateway Center,

Newark, New Jersey 07102, Attomeys for Mayco

Oil & Chemical Company, Appellant. Henry B.

Fitzpatrick, Esquire, Stephen P. Chawaga, Esquire,

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Fitzpatrick & Tanker, One Logan Square, Suite

3001, Philadelphia, PA 19103, Attomeys for Astro

Pak, Appellant. Joseph J. Strelkoff, Esquire, 131

Mormistown Road, Basking Ridge, New Jersey

07920-1650, Attomey for AT&T Technologies, Inc.

by its successor American Telephone and Telegraph

Company, Inc. Appellant. Stephen P. Kramer,

Esquire, Proskauer, Rose, Goetz & Mendelsohn,

1585 Broadway, New York, New York 10036,

Attomeys for Biocraft Laboratories, Inc., Appellant.

Daniel M. Steinway, Esquire, Catherine J. Serafin,

Esquire, Carl A. Salisbury, Esquire, Anderson, Kill,

Olick & Oshinsky, 2000 Pennsylvania Avenue,

N.W., Suite 7500, Washington, D. C. 20006,

Attomeys for Chesebrough-Pond’s USA Company

and Lever Brothers Co., Appellants. Steven A.

Kunzman, Esquire, Bivona, Cohen, Kunzman, Coley,

Yospin, Bemstein & DiFrancesco, 15 Mountain

Boulevard, Warren, New Jersey 07059-6327,

Attomeys for CPC International, Inc. including Best

Foods division and Penick Corporation successor to

S. B. Penick Company, Appellant. Steven J.

Eisenstein, Esquire, Lum, Hoens, Conant, Danzis &

Kleinberg, 103 Eisenhower Parkway, Roseland, New

Jersey 07068-1049, Attomeys for Fluid Packaging

Co. Inc., Appellant. John F. Stillmun, Esquire, FMC

Corporation, 1735 Market Street, Philadelphia, PA

19103, Attomey for FMC Corporation, Appellant.

Tod W. Read, Esquire, Edward A. Kurent, Esquire,

Gilberg & Kurent, 1250 Eye Street, N.W., Suite 600,

Washington, D.C. 20005, Attomeys for Ganes

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Chemicals, Inc. and Siegfried Chemicals, Appellants.

Langley R. Shook, Esquire, Sidley & Austin, 1722

Eye Street, N.W., Washington, D.C. 20006,

Attomeys for General Electric Company, Appellant.

David B. Graham, Esquire, John W. Kampman,

Esquire, Steven L. Leifer, Esquire, Howrey &

Simon, 1299 Pennsylvania Avenue, N.W..,

Washington, D.C. 20004-2402, Attomeys for Hexcel

Corporation, Appellant. George S. Flint, Esquire,

Jackson & Nash, 330 Madison Avenue, New York.

New York 10017-5096, Attomeys for Huls America,

Inc., Appellant. Ezra D. Rosenberg, Esquire, Fox,

Rothschild, O’Brien & Frankel, Princeton Pike

Corporate Center, 997 Lenox Drive, Building #3,

Lawrenceville, New Jersey 08648-2311, James K.

Guerin, Esquire, Senior Counsel, IBM Corporation,

208 Harbor Drive, Stamford, Connecticut

06904-2501, Attiomeys for IBM Corporation,

Appellant. John A. Boyd, Esquire, Harns, Dickson,

Buermann, Camp, Ashenfelter, Slous & Boyd, 250

Bellvue Avenue, Upper Montclair, New Jersey

07043, Attomeys for John H. Cooney, Inc..,

Appellant. Nan Bernardo, Esquire, Shanley & Fisher,

131 Madison Avenue, Morristown, New Jersey

07962-1979, Attomeys for J. T. Baker, Inc.; Marisol,

Inc.; and Procter & Gamble Manufacturing Co..,

Appellants. Thomas Richichi, Esquire, Beveridge &

Diamond, P.C. 1350 I Street, N.W., Suite 700,

Washington, D.C. 20005, Attomeys for Mobil Oil

Corporation, Appellant. Michael M. Gordon,

Esquire, Cadwalader, Wickersham & Taft, 100

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Maiden Lane, New York, New York 10038,

Attomeys for Occidental Chemical Corporation and

Safety-Kleen Envirosystems Company Appellants.

John S. Agar, Esquire, Skadden, Arps, Slate,

Meagher & Flom, 1440 New York Avenue, N.W..,

Washington, D.C. 20005, Attomeys for Phelps

Dodge Corporation, Appellant. James Bickford.

Esquire, 172 Sayre Drive, P.O. Box 7081, Princeton,

New Jersey 08543, Attomey for Procedyne

Corporation, Appellant. Renata M. Manzo, Esquire,

Reynolds Metals Company, 6601 West Broad Street,

Richmond, Virginia 23230, Attomey for Reynolds

Metals Company, Appellant. Lila Wynne Williams,

Esquire, Slimm, Dash & Goldberg, 216 Haddon

Avenue, P.O. Box 2222, Westmont, New Jersey

08108-2886, Attorneys for Russell Reid Company,

Appellant. William F. Paquin, Esquire, Haronian,

Paquin, Bramley & Harrington, Inc., 190 Commerce

Drive, Warwick, Rhode Island 02886, Attorneys for

Saft Nife, Inc. (sued as SAB Nife, Inc.), Appellant.

Richard J. Kagan, Esquire, Leonard & Butler, 300

Lanidex Center, Parsippany, New Jersey 07054,

Attomeys for Sequa Corporation (formerly Sun

Chemical Corporation), Appellant. Patricia A.

Barald, Esquire, Covington & Burling, 1201

Pennsylvania Avenue, N.W., P.O. Box 7566,

Washington, D.C. 20044, Attomeys for Smithkline

Beecham Corporation, Appellant. Max Spinrad,

Esquire, Miele, Cooper, Spinrad & Kronberg, 90

Millbum Avenue, Milibum, New Jersey 07041,

Attomeys for Spectraserv, Inc. (formerly Modem

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Transportation Company), Appellant. Leonard R.

Charla, Esquire, Diane B. Carley, Esquire, Butzel

Long, 150 W. Jefferson, Suite 900, Detroit,

Michigan 48226-4430, Attomeys for Stroh Brewery

Company (successor in interest to Jos. Schlitz

Brewery Co.) and/or Stroh Container Co improperly

named as Starch Container, Appellant. Donald K.

Joseph, Esquire, Wolf, Block, Schorr & Solis-Cohen,

Packard Building, 12th Floor, Philadelphia, PA

19102, Attomeys for Sybron Transition Corporation

and Sybron Chemicals, Inc. including as trade names

Gamlen Chemical and Tanatex, Appellants. Edmund

R. Papazian, Esquire, Witco Corporation, Legal

Department, 12th Floor, 520 Madison Avenue, New

York, New York 10022-4236, Samuel D. Bornstein,

Esquire, The Atrium, 80 Route 4 East, Paramus,

New Jersey 07652, Attorneys for Witco Corporation,

Appellant.

Dante J. Romanini, Esquire, Richard M. Cohen,

Esquire, Kozlov, Seaton, Romanini & Brooks, P.C..,

1940 Route 70 East, Suite 200, Cherry Hill, New

Jersey 08003, Attomeys for Transtech Industries,

Inc.; Kin-Buc, Inc.; and Filcrest Realty, Inc.,

Appellees.

Myles E. Flint, Esquire, Acting Assistant Attomey

General, Anne S. Almy, Esquire, Catherine R.

McCabe, Esquire, United States Department of

Justice, Environmental Enforcement Section, Ben

Franklin Station, P.O. Box 7611, Washington, D.C.

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20044, Attorneys for United States of America,

Amicus-appeilee.

JUDGES: Before: SCIRICA, NYGAARD, and WEIS, Circuit

Judges.

OPINION BY: WEIS

OPINION: OPINION OF THE COURT

Weis, Circuit Judge.

In this case brought under the Comprehensive Environmental

Response, Compensation, and Liability Act (CERCLA), the district

court rejected appellants’ contention that, having entered into a

settlement with the Environmental Protection Agency, they were

relieved of responsibility for cleanup expenses incurred by the

owners of a landfill. We conclude that the district court's denial of

summary judgment and refusal to enforce a settlement is a collateral

order not appealable under the Cohen exception. Accordingly, we

will dismiss the appeal.

The owners and operators of the Kin-Buc Landfill in New

Jersey brought this suit in 1990 seeking contribution for costs

incurred in cleaning up that hazardous waste site. The 445 named

defendants are generators, transporters, or haulers of hazardous

waste who are alleged to be potentially responsible parties liable to

plaintiffs for past expenses incurred at the site, as well as for

anticipated future costs.

Approximately 200 of the defendants (‘‘settlor-defendants’’)

moved for summary judgment asserting that, as a result of a

settlement agreement with the Environmental Protection Agency

embodied in a 1988 consent decree, they were not liable to

plaintiffs. The district court denied the motion concluding that the

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consent decree covered only costs incurred by the United States and

did not purport to absolve the settlor-defendants from liability for

contribution to plaintiffs for their separate expenditures.

Under CERCLA, parties who have “resolved [their] liability to

the United States... ina[] .. . judicially approved settlement

shall not be liable for claims for contribution regarding matters

addressed in the settlement.”

42 U.S.C. § 9613(f)(2). The court concluded, however, that the

application of that statutory provision was limited by the terms of

the settlement agreement and that “in no way was the govemment

absolving defendants from all liability to any other party for the

ongoing problems at the site.’ The court then denied

settlor-defendants’ request for certification of a controlling question

of law under 28 U. S. C. §§ 1292(b). Approximately 35 of the

settlor-defendants have appealed.

Settlor-defendants contend that this Court has jurisdiction

under the “collateral order” doctrine articulated in Cohen vy.

Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47, 93 L. Ed.

1528, 69 S. Ct. 1221 (1949). In that case, the Court defined an

exception to the final judgment requirement of 28 U. S. C. § 1291

as a “small class [of decisions] which finally determine claims of

right separable from, and collateral to, mghts asserted in the action,

too important to be denied review and too independent of the cause

itself to require that appellate consideration be deferred until the

whole case is adjudicated.” Id. at 546.

In Coupers & Lybrand y. Livesay, 437 U.S. 463, 57 L. Ed. 2d

351, 98 S. Ct. 2454 (1978), the Court listed three criteria that must

be present for an interlocutory order to come within Cohen’s

narrow exception to the final-judgment rule. The order must (1)

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conclusively determine the disputed question; (2) resolve an

important issue completely separable from the merits of the action:

and (3) be effectively unreviewable on appeal from a final

judgment. Id. at 468.

The Supreme Court has been chary of expanding the Cohen

exception any further. In Lauro Lines s.r.l. v. Chasser, 490 U.S.

495, 498, 104 L. Ed. 2d 548, 109 S. Ct. 1976 (1989), the Court

found that an interlocutory order denying enforcement of a

contractual forum-selection clause did not satisfy the third

requirement of the collateral order doctrine. The Court reiterated its

“general rule” that an order is “effectively unreviewable” only if it

“involves an asserted right the legal and practical value of which

would be destroyed if it were not vindicated before trial.” 490 U.S.

495 at 498-99 (internal quotations omitted). That an erroneous

ruling may result in additional litigation expense “‘is not sufficient

to set aside the finality requirement imposed by Congress’ [in

section 1291].” Id. at 499 (quoting Richardson-Merrell Inc. vy.

Koller, 472 U.S. 424, 436, 86 L. Ed. 2d 340, 105 S. Ct. 2757

(1985))

An immunity to Civil suit itself is a right that can be lost if not

enforced before trial. Consequently, an order rejecting official

immunity is immediately appealable, Mitchell v. Forsyth, 472 U.S.

S11, 525, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985), as is one

denying effect to the protection of the “Speech or Debate Clause,”

Helstoski v. Meanor, 442 U.S. 500, 506-08, 61 L. Ed. 2d 30, 99 S.

Ct. 2445 (1979). See also Abney v. United States, 431 U.S: 651.

662, 52 L. Ed. 2d 651, 97 S. Ct. 2034 (1977) (order denying night

not to stand trial on double jeopardy grounds is appealable before

final judgment).

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' Although an order denying immunity to suit falls within the narrow

confines of the “collateral order” doctrine, that exception may not

be allowed to swallow the rule. In Van Cauwenberghe vy. Biard, 486

U.S. 517, 100 L. Ed. 2d 517, 108 S. Ct. 1945 (1988), the Coun

remarked that “in some sense, all litigants who have a mentorious

pretnal claim for dismissal can reasonably claim a right not to stand

trial.” Id. at 524. The Court further reasoned:

“Because of the important interests furthered by the

final-judgment rule . . . and the ease with which certain

pretrial claims for dismissal may be alleged to entail the

right not to stand trial, we should examine the nature of

the night asserted with special care to determine whether

an essential aspect of the claim is the night to be free of

the burdens of a trial.”

Id. at 524-25.

In Van Cauwenberghe, the Court assumed the validity of

defendant's contention that he was immune from service of process,

but held, nonetheless, that the district court’s denial of his motion

to dismiss was not immediately appealable. Id. at 524. ‘“‘Because the

right not to be subject to a binding judgment may be effectively

vindicated following final judgment, we have held that the denial

of a claim of lack of jurisdiction is not an immediately appealable

collateral order.” Id. at 527.

We have followed the Supreme Court's admonition and “have

consistently construed the Cohen exception narrowly rather than

expansively.”’ Lusardi v. Xerox Corp., 747 F.2d 174, 176-77 (3d

Cir. 1984); see also Praxis Properties, Inc. v. Colonial Say. Bank,

s.e.a., 947 F.2d 49, 54 (3d Cir. 1991). Demenus v. Tinton 35 Inc.,

17a

873 F.2d 50, 53 (3d Cir. 1989). We considered the problem in

Borden Co. v. Sylk, 410 F.2d 843 (3d Cir. 1969), observing:

“We have detected what appears to be an irresistible

impulse on the part of appellants to invoke the ‘collateral

order’ doctrine whenever the question of appealability

arises. Were we to accept even a small percentage of

these sometime exotic invocations, this court would

undoubtedly find itself reviewing more ‘collateral’ than

‘final’ orders.”

Id. at 845-46. For a comprehensive review of the collateral order

doctrine, see ISA Charles A. Wright et al., Federal Practice and

Procedure § 3911 to 3911.5 (1992),

Tuming then to the issues presented in the case before us, we

first consider the factors set out in C oopers & Lybrand, 437 US.

at 468. We may assume that the district court's order is final

because there is no indication that it was tentative or less than the

last word on the settlor-defendants’ construction of the consent

decree. We have substantial doubts, however, that the issues

settlor-defendants raised in defense of appellate jurisdiction under

the collateral order doctrine are distinct from the underlying merits

of the lawsuit. We need not linger long on this point, however,

because it is quite clear that the settlor-defendants’ contentions can

be raised on direct appeal after final judgment. Therefore, the

interlocutory order fails to meet all of the requirements needed to

fall within Cohen's narrow exception to the final-judgment rule.

Recognizing that deficiency, settlor-defendants assert that the

consent decree grants them immunity from suit, relying on a line of

cases holding that interlocutory orders denying enforcement of

settlement or release agreements are immediately appealable. See

18a

Forbus v. Sears, Roebuck & Co., 958 F.2d 1036, 1039-40 (11th

Cir. 1992); Grillet v. Sears, Roebuck & Co., 927 F.2d 217, 219-20

(Sth Cir. 1991); Janneh v. GAF Corp., 887 F.2d 432, 436 (2d Cir.

1989); Towers Hotel Corp. v. Rimmel, 871 F.2d 766, 769-70 (8th

Cir. 1989); cf. Chaput v. Unisys Corp., 964 F.2d 1299, 1301 (2d

Cir. 1992). Those cases are factually distinguishable from the case

before us in that they involved disputes over settlement agreements

between plaintiffs and defendants. Here, however, the settlement

agreement was between settlor-defendants and the EPA -- an entity

that is not a party to this case. Plaintiffs are not alleged to have

reached any agreement with the settlor-defendants on the claim

incorporated in the complaint.

More significant, however, is our disagreement with the

decisions in Forbus, Grillet, Janneh and Towers. We believe that

they undermine the final-judgment rule and expand the immunity

concept beyond that which the Supreme Court has approved. In our

view, Desktop Direct, Inc. v. Digital Equip. Corp., 993 F.2d 755

(10th Cir. 1993), more closely conforms to the Supreme Court's

teaching.

In Midland Asphalt Corp. v. United States, 489 U.S. 794, 103

L. Ed. 2d 879, 109 S. Ct. 1494 (1989), the Supreme Court

cautioned that one should not “play word games with the concept

of a ‘nght not to be tried.’” Id. at 801. The Court went or to

explain that [a] right not to be tried in the sense relevant to the

Cohen exception rests upon an explicit statutory or constitutional

guarantee that trial will not occur... .” Id.

Cases involving claims of official immunity have listed

interests that justify permitting freedom from suit, such as “‘the

general costs of subjecting officials to the risks of trial -- distraction

of officials from their govemmental duties, inhibition of

19a

discretionary action, and deterrence of able people from public

service.” Mitchell, 472 U.S. at 526 (quoting Harlow v. Fitzgerald,

457 U.S. 800, 816, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982)). No

such public policy considerations are present in the case at hand.

In Desktop Direct, the United States Court of Appeals for the

Tenth Circuit declined to review an order vacating a settlement

between plaintiff and defendant. The Court concluded that the

Cohen doctrine should “not be expanded without compelling

justification. A claimed right to avoid litigation based on a private

contract to that effect does not meet this standard.” Id. at 760. The

Court also observed that it did not “see how a private settlement

contract is significantly different from the contracted forum

selection clause the Supreme Court refused to enforce through

interlocutory appeal in Lauro Lines.” Id.

Settlor-defendants seek some support from CERCLA, but we

are not convinced. Indeed, we note that the language of section

9613 (f)(2) supplies another basis for our conclusion that

settlor-defendants have no immunity from suit. That section

provides that parties settling with the United States “shall not be

liable for claims for contribution regarding matters addressed in the

settlement.” 42 U.S. C. § 9613(f)(2). We believe it is significant

that the statute does not include the word “immunity,” but merely

refers to a party’s “liability.”

In Brown v. Grabowski, 922 F.2d 1097, 1109 (3d Cir. 1990),

we refused to review an interlocutory order rejecting claims of

official immunity based on state law. Although state law conferred

immunity from liability, we found no authority that granted

immunity from suit as well. Id. at 1108.

20a

As the Court pointed out in Van Cauwenberghe, undoubtedly

there is value to the litigant ‘in thumphing before trial, rather than

after it.’ 486 U. S. at 524 (quoting United States v. MacDonald,

435 U.S. 850, 860, & n.7, 56 L. Ed. 2d 18, 98 S. Ct. 1547 (1978)).

Ordinarily, however, the benefits of the final-judgment rule,

including discouragement of piecemeal appeals, efficient utilization

of judicial resources, and prevention of delay and ultimate

disposition, take precedence. Id. at 521 n.3, 524-25. If

settlor-defendants had a right to an appeal, it would be difficult to

deny one to other litigants who can assert the benefit of such

affirmative and dispositive defenses as claim or issue preclusion,

Statute of limitations, lack of subject matter jurisdiction, and the

like. In Powers v. Southland Corp., 4 F.3d 223 (3d Cir. 1993), we

held that an order joining a party despite the lapse of the statute of

limitations was not appealable as a collateral order. We observed:

‘While it could be argued that a statute of limitations entails a nght

not to be sued after the expiration of the limitations period, that

contention was rejected by this court in connection with a cnminal

statute of limitations.” Powers, No. 92-1562, slip op. at 18 (citing

United States v. Levine, 658 F.2d 113, 124-29 (3d Cir. 1981)).

Levine presented an even stronger case tor construing the lapse

of the statute of limitations as an immunity from prosecution and

(rial, but, nevertheless, this Court held that the Cohen exception did

not apply. Levine, 658 F.2d at 129.

We are persuaded that orders denying summary judgments on

claims of immunity from trial based on releases or settlements are

not appealable as Cohen collateral orders. Consequently, we lack

jurisdiction and will dismiss this appeal.

2la

Settlor-defendants have requested us to consider their appeal, in the

alternative, as a petition for mandamus. We do so. but deny the

petition for failure to assert a cognizable basis for relief.

The appeal will be dismissed without prejudice. The petition for

mandamus will be denied.

22a

APPENDIX B

TRANSTECH INDUSTRIES, :

INC., et. al.

Civil Action No. 90-2578

Plaintiffs (Harold A. Ackerman)

Vv. OPINION

A & Z SEPTIC CLEAN,

et. al.

Defendants.

Plaintiffs in this action are owners and/or operators of a

hazardous waste site. Having spent approximately $13 million to

clean up the site, plaintiffs seek through this action contribution

costs from the 440 users of the site. Over two-hundred of the 440

defendants had previously settled a claim for clean-up costs brought

by the federal goverment. Accordingly, these defendants, citing a

federal statutory provision, filed a motion to dismiss the complaint

for a failure on the part of the plaintiffs to allege a set of facts upon

which relief can be granted. The motion is opposed by plaintiffs

and by the other, non-settling, defendants. Additionally, defendant

Clairol (one of the settling defendants) moves to strike the

plaintiffs’ complaint, and, in the altemative, for summary judgment

pursuant to Rule 56. I will address each motion separately.

23a

SETTLOR DEFENDANTS MOTION

1. Standard for Summary Judgment

As an initial matter, Federal Rule of Civil Procedure 12(b)

States that

If, on a motion asserting the defense . . . to dismiss for failure

of the pleading to state a claim upon which relief can be

granted, matters outside the pleading are presented to and not

excluded by the court, the motion shall be treated as one for

summary judgment and disposed of as provided in Rule 56,

and all parties shall be given reasonable Opportunity to present

all material made pertinent to such a motion by Rule 56.

In their motion papers, defendants rely heavily on language of

a consent decree they entered into with the United States

government, a document that was not a part of the pleadings.'

Thus, parties were notified that I am treating their motion as a Rule

56 motion for summary judgment. All parties were given an

Opportunity to submit additional relevant materials under Rule 56.

Construing this motion as one for summary judgment, | note

that summary judgment may be granted only if the pleadings,

supporting papers, affidavits, and admissions on file, when viewed

with all inferences in favor of the nonmoving party, demonstrate

that tiere is rio genuine issue of material fact and that the movant

is entitled to judgment as a matter of law. See Todaro y. Bowman.

872 F.2d 43, 46 (3rd Cir. 1989); Chippolini v. Spencer Gifts, Inc..,

814 F.2d 893, 896 (3rd Cir.), cert. dism’d,-483 U.S. 1052 (1987).

Put differently, “summary judgment may be granted if the movant

shows that there exists no genuine issues of material fact that would

permit a reasonable jury to find for the nonmoving party.”’ Miller

1. The consent decree was approved in United States vy. Absolute Fire

Protection Co., Inc., No. 88-207 (ALJ) (D.N.J. Aug. 1, 1988).)

24a

v. Indiana Hospital, 843 F.2d 139, 143 (3rd Cir. 1988), cert.

denied, 488 U.S. 870 (1988). An issue is “genuine” if a reasonable

jury could possibly hold in the nonmovant's favor with regard to

that issue. See Anderson vy. Liberty Lobby, Inc., 477 U.S. 242,

247-48 (1986). A fact is material if it influences the outcome under

the governing law. Id. at 248.

Within the framework set out above, the moving pary

essentially bears two burdens: First, there is the burden of

production, of making a prima facie showing that it is entitled to

summary judgment. This may be done either by demonstrating there

is no genuine issue of fact and that as a matter of law, the moving

party must prevail or by demonstrating the nonmoving party has not

shown facts relating to an essential element of the issue for which

it bears the burden. Once either showing is made, this burden shifts

to the nonmoving party who must demonstrate facts supporting

each element for which it bears the Durden as well as establish the

existence of genuine issues of material fact. Second, there is the

burden of persuasion. This burden is a stringent one which always

remains with the moving party. If there remains any doubt as to

whether a trial is necessary, summary judgment should not be

granted. See Celotex Corp. v. Catrett, 477 U.S. 317, 330-33;

Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-61 (1970);

Advisory Committee's Notes on Fed. Rule of Civ. Pro. 56(e), 1963

Amendment; see generally C. Wright, A. Miller, & M. Kane,

Federal Practice and Procedure §2727 (2nd ed. 1983).

With this standard in mind, I tum to the facts surrounding this

motion.

Il. Background

This case tums on an interpretation of the Comprehensive

Environmental Response, Liability and Compensation Act

(CERCLA), a complex piece of federal legislation passed in 1980,

significantly amended in 1986, and designed to effectuate quick

cleanups of hazardous waste sites. At issue here is a site known as

Kin-Buc (the “Site”), which has been a trash disposal site in New

Jersey since 1947. During 1968, the Site began operating as a

State-approved landfill for hazardous waste disposal, and continued

as such until 1976, when the state of New Jersey revoked

Kin-Buc’s operating permit and enjoined any further hazardous

waste disposal.

Following the Site’s closure to hazardous waste, the

Environmental Protection Agency (“EPA”) began pursuing statutory

remedies to make the Site safer and cleaner. Specifically, the EPA

filed an action against the owners and operators of the Site (which

included plaintiffs in the instant action), which was designed to

force those responsible ‘or the Site's situation to engage in clean-up

operations. The action was settled on January 30, 1980, when the

owner/operators (again, including plaintiffs) agreed to perform and

bear the costs of a number of actions designed to limit pollution at

the Site. Shortly thereafter, in 1980, the EPA determined that the

pollution was still occurring, and instituted its own Cleanup. It

treated and disposed of leachate at a pool at the Site, and removed

numerous toxic drums. At some point in the next two years, the

EPA also prepared a Remedial Investigation and Feasibility Study

(“RI/FS”) to determine the nature and extent of hazardous

Substances at the site. When plaintiffs assumed the remedial

activities pursuant to a 1982 agreement with the EPA, the EPA

ceased its own clean-up operations.

26a

In 1981, the rules governing such cleanups changed, and the

EPA gained a new point of leverage: CERCLA. CERCLA allocated

1.6 billion for cleanups of hazardous waste sites for which no

responsible party could be found. It also authorized the EPA to

institute broad measures to force owners, users, or operators of sites

to clean up their sites or reimburse the EPA for any of its unilateral

actions in cleaning up sites. These owners/operators/users of

hazardous waste sites were referred to in CERCLA as “potentially

responsible parties” (“PRPs”).

In 1983, the EPA determined that the owners and operators of

Kin-Buc were PRPs for the pollution, and hence were potentially

liable to the EPA for EPA expenditures in its clean-up programs.

on September 23, (983, the EPA issued a unilateral administrative

order pursuant to CERCLA Section 106 (the “106 Order’) requiring

all owners and operators of the Site, which included plaintiffs in

this action, to continue the response actions they were performing

since 1982, perform its own RI/FS, and operate, maintain and

monitor systems to eliminate the release or threat of release of

hazardous substances.’ In May 1984, the owners and operators of

the Site submitted proposed remediation plans to the EPA. The

EPA selected a plan that included a variety of remedial! actions for

the owners and operators to undertake.’

2. In March, 1986, the EPA issued another 106 Order, incorporating all the

measures of the previous order and setting a deadline for completion by

Plaintiffs of certain response actions.

3. These actions included: installing a slurry wal! to bedrock around the

Landfill; installing and maintaining !andfill capping; collecting and

treating leachate; and operating, maintaining and monitoring the remedial!

measures implemented at the Site.

27a

In 1984, the EPA sought to collect restitution for its expenses

at the Site. It wrote letters to about 360 PRP, demanding

reimbursement for $4,980,398. This amount constituted the EPA’s

expenses regarding: 1) the leaching costs at the pool between

February, 1980 and October, 1982; 2) personnel, analytical and

administrative costs; 3) engineering plans for effectuating the

cessation of releases at the Site; and 4) preparation of its initial

Remedial Investigation and Feasibility Study.’

Shortly after the EPA instituted the action for response costs,

a number of operators began negotiating a settlement with the EPA.

Eventually, in the summer of 1988, 226 defendants joined in the

settlement, agreeing to pay the EPA a total of $4.9 million. Though

they were given notice of the settlement, as was required by

statute,* plaintiffs did not join in the settlement agreement.

On August 16, 1990, plaintiffs brought this CERCLA action

against 441 users and operators of the Site, to recoup their share of

the expenses. This action flows out of the work piaintiffs have

undertaken pursuant to the EPA’s 106 Order. Plaintiffs estimate

their costs to date for the work they had undertaken pursuant to the

3. These costs involved not only the actual costs expended by the EPA in

its Own actions cleaning up the Site, but also its expenses in determining

what remedial actions would be appropriate for plaintiff to undertake.

4. In this decision approving the consent decree, Judge Lechner specifically

noted that the United States had complied with the required statutory

notice provisions. Judge Lechner further declined to allow some parties,

who had missed statutory deadlines for joining the settlement, to join

late. See United States v. AFP Co_, Inc., No. 88-2087, transcript op. at

4 (D.N.J. 1990). The non-settling defendants challenge the

constitutionality of the notice given them, claiming that one publication

in the Federal Register is insufficient. For the reasons detailed in this

opinion, I do not need to reach this question.

alec

28a

EPA’s Order to be $12 million, and that future remedial work will

exceed $100 million.” The settler-defendants,° relying on a

different provision of CERCLA, contend that the consent decree

they entered into with the EPA absolved them of all liability to any

other PRP connected with the Site for disposal of hazardous wastes

at the Site. They thus make this motion for dismissal. I will now

tum to a discussion of these issues.

III. Discussion

A. CERCLA

In 1980, Congress became convinced that deposits of

hazardous substances and wastes at vanous dump sites throughout

the country pused sericus problems to public health and

necessitated prompt clean-up operations. See, e.g, Dedham Water

Col. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1081 (1st

Cir. 1986). In response, it enacted an exceedingly complex piece of

legislation called the Comprehensive Environmental Responses,

Compensation, and Liability Act, 42 U.S.C. § 9601 et seq., which

authorized funds for an enormous clean-up program and presented

statutory authority to hold operators of and contributors to

hazardous waste sites strictly liable for the clean-up costs of

remedying the situation. 42 U.S.C. § 9607. Under the statute,

persons who owned or operated a hazardous waste facility, disposed

hazardous substances at such facility, arranged for disposal at a

facility, or who accepted hazardous substances for transport to

disposal or treatment facilities could be held liable for “‘all costs of

5. These figures were supplied by plaintiff in response to this Court's

request for supporting materials pursuant to Rule 12(b).

6. The settler defendant group consists of over 200 of the defendants.

29a

removal or remedial action incurred by the United States

Govermment or a State . . . [and for] any other necessary costs of

response incurred by any other person consistent with the national

contingency plan.” Id.

Once a site was identified as necessitating immediate cleanup,

the statute explicitly provided the EPA with several remedies. It

could issue an administrative order directing the responsible parties

to implement response actions. 42 U.S.C. § 9606. It could apply to

a district court for an injunction to compel responsible parties to

abate releases of hazardous substances from the site. Finally, it

could undertake remedial action itself, using funds frorn the

Superfund provided by the statute, and then sue the resp sible

parties for reimbursement. 42 U.S.C. §§ 9604, 9607. see, €.2.,

United States v. Rohm & Haas Co., 669 F. Supp. 672, 674 (D.N.J.

1987). Section 107 confined defenses to liability to those

enumerated in Section 107(b).’

7. Section 107(b) lists only the following defenses:

“(1) an act of God;

“(2) an act of war;

“(3) an act or omission of a third party other than an employee or

agent of the defendant, or than one whose act or omission occurs in

connection with a contractual relationship, existing directly or indirectly,

with the defendant (except where the sole contractual arrangement arises

from a published tariff and acceptance for carriage by a common carrier

by rail), if the defendant establishes by a preponderance of the evidence

that (a) he exercised due care with respect to the hazardous substance

concermed, taking into consideration the characteristics of such hazardous

substance, in light of all relevant facts and circumstances, and (b) he

took precautions against foreseeable acts or omissions of any such third

party and the consequences that could foreseeably result from such acts

Or Omissions; or

“(4) any combination of the foregoing paragraphs.”

30a

While CERCLA provided the EPA with clear authority to sue

owners of and coniributors to hazardous waste sites, the ability of

those sued by the EPA to seek contribution costs from other

potentially responsible contributors was in doubt. This was true

despite the fact that Section 107 provided that PRPs can be liable

to private parties that engage in clean-up operations. See, e.g.

Burlington Northern R. Co. v. Time Oil Co., 738 F. Supp. 1339

(W.D. Wash. 1990); see also United States v. New Castle County,

642 F. Supp. 1258, 1263 (D. Del. 1986) (noting that other statutes

expressly created rights to contribution, but CERCLA did not). But

by 1986, Congress realized that if cleanups are going to be

effectuated quickly, it not only had to provide incentives for

settlements with the govemment but also had to assure that liable

parties could seek restitution from other potentially liable parties.

Accordingly, Congress adopted a series of amendments to

CERCLA, designed to further these two policy objectives. The first

CERCLA amendment stated that ‘“any person may seek contnbution

from any other person who is liable or potentially liable under

section 107(a)... .”’42 U.S.C. § 9613(f)(1). Allocation of costs are

to be governed by “such equitable factors as the court determines

are appropriate.” 42 U.S.C. § 9613(f)(1). By adding this provision,

Congress clarified its intent to have the costs of hazardous waste

cleanups shared by all responsible parties. The second provision

provides that parties who have “resolved [their] liability to the

United States . . . in an administrative or judicially approved

settlement shall not be liable for claims for contribution regarding

matters addressed in the settlement.” 42 U.S.C. § 9613(f)(2). The

purpose here is to encourage parties to settle with the goverment,

which, in tum, served to quickly effectuate urgent clean-up

operations.

3la

Plaintiffs argue that they have a right to response costs under

Section 107(b), or, alternatively, to contribution costs under Section

1 13(f)(1). Defendants, through this motion, contend that such claims

are barred by 113(f)(2) because their settlement with the

government encompassed all liability arising out of hazardous waste

disposal at the Site.

B. Section 107(A)

While plaintiffs allege causes of action under both Section

107(a) and Section 107(b), in response to defendants’ motion,

plaintiffs initially contend that this suit is brought under Section

107(a) and, therefore, the available defenses are strictly limited as

a matter of law to those enumerated in Section 107(b). Section

107(a) of CERCLA states that any owners and users of hazardous

waste sites are liable for “any other necessary costs of response

incurred by any . . . person consistent with the national contingency

plan; .. .” 42 U.S.C. § 9607(a)(4)(B). Section 107 further states

that liability is “subject only to the defenses set forth in subsection

(b) of this section.”* Thus, plaintiffs contend that since the

defendants’ grounds for their motion are articulated in section

113(f)(2) rather than in section 107(b), the motion must fai! as a

matter of basic statutory interpretation.

More specifically, plaintiffs argue that the statutory scheme

divides causes of action between privately initiated cleanups and

cleanups initiated under threat by the EPA. Under plaintiffs’ theory,

claims of the former type constitute claims for response costs under

§ 107, while claims of the latter type are contribution claims under

§ 113(f(1). Unlike response cost claims, Section 113(f)(1)

8. The defenses under section (b) are: acts of God, acts of war, or

unforeseeable acts or omissions of third parties.

32a

contemplated ordinary tort principles of contribution, which require

a finding of joint and several liability. Section 107(a), on the other

hand, is purely a statutory-created, cost-recovery remedy, with

limited defenses. Plaintiffs then contend that since they voluntarily

began their clean-up operation, theirs is a cost recovery action

under Section 107. See also Key Tronic Corp. v. United States, No.

C-89-694-JLQ, slip op. at 15 (E.D. Wa. Aug. 9, 1990) (CERCLA

does not bar actions “to recover privately incurred initial response

costs from a settlor PRP who has obtained contribution protection

from the EPA for the final clean-up costs.”’)

I disagree. Prior to the 1986 amendments to CERCLA, “it was

unclear whether a private nght of action existed for contribution to

defendants from other potentially liable parties.” Burlington

Northern R. Co. v. Time Oil. Co., 738 F. Supp. 1339, 1341 (W.D.

Wash. 1990). Congress enacted section 113(f)(1), which provides

that “[a]ny person may seek contribution from any other person

who is liable or potentially liable under section 9607(a) of this title,

during or following any civil action under section 9606 of this title

or under section 9607(a) of this title,” see 42 U.S.C. § 9613(f(1),

to provide for faimess in situations where one party was bearing the

cost of a major hazardous waste site simply because the EPA

targeted it first. The clear import of this language is to allow

persons situated like plaintiffs in this case to gain reimbursement

for their clean-up expenditures from other PRPs -the point of

Section 113(f)(1) is to share the costs among the blameworthy

parties. Without this statutory language -- which plaintiffs seem to

write away with their argument -- it is unclear whether they would

have a CERCLA cause of action at all.

Further, plainuffs’ argument in this regard defies the meaning

of “contribution.” Plaintiffs contend that since there never was a

33a

judgment issued against them, there was never legal liability to seek

contnbution for, and therefore its claim is not a claim for

contribution. Under general legal principles, a claim for contribution

is one in which one liable party attempts to recover from another

potentially liable party for its share of the cost. See, e.g. Northwest

Airlines, Inc. v. Transport Workers Union of America, 451 U.S. 77,

87-88 (1981); In Re Agent Orange Product Liability Litigation, 818

F.2d 201, 207 (2nd Cir. 1987). Absent a statutory provision to the

contrary, a claim against one liable party by a party who voluntary

agreed to perform certain actions pursuant to a settlement agreement

is still a claim for contribution.’ Plaintiffs present no reason why

this flexible understanding of contribution should be any different

under CERCLA. Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 672

(Sth Cir. 1989) (when one liable party sues another PRP for its

share of response costs incurred by the former, the claim is one of

9. In Huggins v. Graves, 337 F.2d 486 (6th Cir. 1964), the Court of

Appeals stated the reasons for this broad view of contribution:

“(T]he principle of contribution is founded . . . upon the

principles of equity and natural justice, which require that

those who are under a common obligation or burden shall

bear it in equal proportions and one party shall not be subject

to bear mere than his just share to the advantage of his co-

obligor. . . . [WJhile a judgment is conclusive on this issue

it is not necessary that it be proved in that way. If a

judgment has not been rendered, the validity of the claim

against both of the parties can be determined by the Court in

the action seeking contnbution.”

Id. at 489. Ironically, the argument that a claim is not one for

contribution in the absence of a legal judgment ordinarily is made by the

defendants, who claim that they took no part in the settlement and may

have opposed it yet still have to share it. See Prosser and Keeton on the

Law of Torts at 339 (Lawyer’s Ed. 1984). Here, the defendants not only

are not making this argument, they are emphatically contending that

plaintiff's claim is one for contribution.

34a

contnbution.) In other words, plaintiff's 107(a) action against

defendants is authorized by section 113(f)(I)’s contribution

provisions, for precisely the reasons that plaintiffs articulate the

need for this action. In fact, when properly construed, the two

sections work together, one goveming liability and the other

goveming contribution from those found liable. First, the plaintiff

must show that the defendant has incurred section 107(a) liability.

Then, it can sue for contribution under section 1|13(f)(1). Amoco

Oil, 889 F.2d at 672.

Moreover, even if I accepted plaintiff's distinction between

response costs and contribution costs, I find that plaintiffs are being

facetious at best in their argument that it acted voluntarily,

privately, and in keeping with the goals of CERCLA, and not as a

result of government threats. Their argument, if accepted, would

drain the words “voluntary” and “contribution” of any meaning

whatsoever. In 1983, the EPA issued a unilateral administrative

order pursuant to CERCLA section 106 directing plaintiffs and

others to continue remedial measures to clean up the Site and

ordering them to design, implement, maintain and monitor for thirty

years the final long-term remedial action selected by the EPA for

the landfill. These actions by plaintiff clearly are the result of civil

actions by the government. If plaintiff failed to comply with the

agreements it made with the government, they would be directly

liable in the form of civil fines or additional injunctive orders.

Acuon under such threats is hardly “voluntary.”’ (Contrast with Key

Tronic, slip op. at 2 (“Key Tronic alleges that it incurred, at its own

initiative, expenses totaling $1,271,511.10 . . . .”) (emphasis

added.))

Even if I was, however, to treat plaintiff's suit against

defendants as purely a section 107 action, and even if I accepted

35a

their claim that they acted voluntary, the Third Circuit has explicitly

rejected the argument that the defenses enumerated in section

107(b) are exclusive. Smith Land & Imp. Corp. v. Celotex C orp..,

851 F.2d 86, 89 (3rd Cir. 1988). In Smith Land, a present owner of

a landfill sued a former owner for contribution. The Third Circuit

recognized that section 107 is inexorably linked with section 113,

and hence found that the defenses enumerated in section 107(b) are

not exclusive, but extend to include § 113(f)(2). The holding is not

only controlling; it is persuasive -- CERCLA, including the original

statute and the amendments, must be read in its entirety, as a single

Congressional response to the problem of hazardous waste and a

program for remedying the current situation. A section 107 claim

by a party liable to the govemment for contribution from other

PRPs can only be understood in light of ali the relevant statutory

provisions.

Thus, plaintiff fails in its argument that since its claim is

authorized by Section 107, it is not subject to a Section 113(f)(2)

defense.

This by no means ends the inquiry; rather it changes the focus

to whether section 113(f)(2) merits dismissal of the claims against

the settler-defendants. And defendants next claim that section

113(f)(2) provides immunity from liability for all matters covered

by the consent decree.

C. Section 113(f)(2)

Defendants argue that they have an absolute defense to

plaintiffs’ claim for contribution, under 1 13(f)(2). Section 113(f)(2)

States that 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

36a

matters addressed in the settlement.” 42 U.S.C. § 9613(f)(2). By its

very language, Congress enunciated a strong desire for settlements

as the best means to effectuate the goals of CERCLA, concluding

that immunity from contribution liability would be the proverbial

“carrot” to coax parties into settling. See, e.g., United States v.

Rohm & Haas, 721 F. Supp. 666, 677 (D.N.J. 1989) (“By enacting

section 113(f)(2) . . . Congress has plainly indicated that

non-settling defendants’ contribution claims will be barred.”’); Smith

Land, 851 F.2d 86, 89 (3d Cir. 1988) (section 113(f)(2) absolves

settling parties from claims of contribution.) Defendants argue that

a primary policy behind the 1986 amendments to CERCLA was to

encourage settlements by forcing non-settling parties to risk bearing

an inequitable share for the cost of cleanup as a consequence of

their unwillingness to settle with the govemment. Accordingly, they

contend that to encourage them to settle, the EPA granted them the

“carrot” of absolution from any further responsibility to clean up

the Site. Plaintiffs, though, they contend, are paying for their

unwillingness to join the settling defendants.

To evaluate the defendants’ motion to dismiss, I must evaluate

the terms of the consent decree itself.'° If a material fact about the

scope of the consent decree is in dispute, the motion must be

denied. Todaro v. Bowman, 872 F.2d 43, 46 (3d Cir.), cert. dism'd

483 U.S. 1052 (1987).

The Consent Decree states its purpose to be “the recovery of

all response costs that have been incurred by the United States in

response to alleged releases and threatened releases of hazardous

10. See Allied Corp. v. Frola, 730 F. Supp 626, 638 (Section 113(f)(2)

provides immunity from suits for contribution regarding all -zatters

addressed in the consent decree.)

37a

substances from the Kin-Buc Landfill.’ Consent Decree at 8. In

retum for the settling parties agreement to pay the past response

costs, the Decree provided that:

Con.

Con.

the United states is agreeable to their so doing in full

satisfaction of all claims of the United States with regard to

Past Response Costs and Past Response Actions [and] to

covenant to limit civil suit and administrative process against

the Settling Parties for any Future Response Actions and any

Future Response Costs which may be incurred by the United

States in connection with the Kin-Buc Landfill. as

Dec. at 12-13. Particularly, the document worked to

extinguish the United States’ claims for Past Response Costs

and Past Response Actions and shall be full and complete

satisfaction of the Settling Parties’ liabilities under CERCLA,

or under any other statute or common law, with respect to Past

Response Costs and Past Response Actions and for any

administrative costs and civil penalties which may have

accrued prior to April 30, 1987, and for interest on such sums

which may have accrued prior to September 22, 1987, with

regard to the Kin-Buc Landfill.

Dec. at 16. Defendants point out that the aforementioned

language is extremely broad. Therefore, they argue, it extends

beyond the bounds of the govemment’s suit and absolves them of

other response costs. Yet this language must be read in light of the

action taken by the United States, the complex situation of this

case, the policies behind CERCLA, and, most importantly, the

matters the decree settles. In light of these factors, the defendants’

claim is untenable, for defendants’ argument conflicts with the

language of the consent decree itself, the reasonable expectations of

the parties entering into the consent decree, the inierpretation of the

38a

consent decree by the judge who authorized it, and the policies

behind the relevant federal statutes.

1. Language of and expectations of agreement

First, the agreement states that “the United States intends and

expects that the Kin-Buc 106 Orders shall remain in full force and

effect against the Owners/Operators and that said Orders shall result

in the abatement of release and threat of release into the

environment of hazardous substances at the KinBuc Landfill.” In

other words, the agreement itself acknowledges the separateness of

the prior arrangements with plaintiffs. If defendants’ arguments

were correct, the government could not reasonably expect those

agreements to remain in force, since the plaintiffs, who were the

parties to that agreement, could have joined the consent decree and

thereby extinguished those agreements. (See supra.)

Second, the agreement clearly states that it covers “incurrence

of costs through Apnil, 30 1987, and interest on such costs through

September 22, 1987, by the United States totalling $4,980,398.” It

is in regard to these actual costs, incurred by the United States, that

the United States agreed to find the settling defendants “in full

satisfaction of all claims of the United Siates.” The consent decree

thus covers the actual costs of $4.9 million and absolves defendants

of liability for other remedial costs determined by the United States

to have arisen from the relevant time period.

Third, the “covenant to limit civil suit and administrative

process against the Settling Parties for any Future Response Actions

and any Future Response Costs which may be incurred by the

United States in connection with the Kin-Buc Landfill . . . only

means that “the United States shall not take such action against the

settling parties until after having made all reasonable efforts to

39a

compel non-settling PRPs to implement future response actions.”

AFP Co., Inc., at 6. In no way was the govemment absolving

defendants from all liability te any other party for the ongoing

problems at the Site.

In light of these facts, it would be unreasonable for defendants,

who are responsible for a large percentage of the problems at the

Site, to have expected the agreement to completely absolve them of

a problem that is far from over.

2. Judge Lechner’s opinion

Further, defendants’ interpretation of the consent decree is at

odds with statements of the judge who approved the decree. In that

opinion, Judge Lechner noted that “[(t)he settling parties’ agreement

to pay the United States almost five million dollars implements the

underlying cost recovery scheme of CERCLA by replenishing the

Superfund promptly.” AFP Co., Inc. at 9. This can oniy be

interpreted to mean the consent decree covers the expenditures at

the Site incurred by the EPA. Moreover, in response to a concem

by a non-settling party, Judge Lechner held that “as long as [a

non-settling party] complies with its legal obligations . . . (it] may

seek contributions from the settling parties.” /d. at /7. A judge

approving a consent decree in a CERCLA case is mandated to take

into account the equities of the situation. He or she cannot approve

a consent decree that is simply unjust or unfair. Given Judge

Lechner’s own equitable interpretation of the decree he approved,

it would be illogical for this court to hold that as a matter of law,

a contrary, inequitable interpretation, govems.

40a

3. Policies of CERCLA

Finally, defendants’ argument that a broad reading of the

consent decree best comports with the policies behind CERCLA

and its accompanying amendments is simply wrong. Defendants

argue that since CERCLA contemplates punishing responsible

parties for refusing to settle with the government, reading the

consent decree to absolve defendant from any other contribution

costs for cieaning up the Site accomplishes this. To take the

defendants’ arguments to their logical conclusion, let us imagine the

result if the plaintiffs had agreed to settle:

In this case, the government's claim is for past response costs

totalling $4.9 million, for the money it spent cleaning up the Site.

This occurred alongside agreements between the EPA and plaintiffs

for the plaintiffe <. spend their own money to engage in various

other clean-up activities, at past and future costs totalling over $30

million. According to defendants’ argument, if plaintiffs joined the

consent decree and settled the claims, then as a matter of law, the

plaintiffs would be free of the requirements of prior agreements

they had entered into for engaging in remedial actions to clean up

the Site. In other words, by agreeing to pay a portion of $4.9

million to the government, the plaintiffs would have been able to

extinguish their responsibility to engage in clean-up activities

costing over $100 million. Such a result is at adds with the policies

behind CERCLA of making the responsible parties pay for the

clean up of hazardous waste sites. Settlement payments of $4.9

million for clean-up costs exceeding $100 million would do little

to further the goal of allocating responsibility among parties who

were in fact responsibie, and of allocating responsibility equitably

and proportional to the amount of harm done by each party. Such

an agreement would not meet Congress's goal of expediting

4la

“effective remedial action and minimiz[ing] litigation.” 42 U.S.C.

§9622(a); United States v. Rohm & Haas, 721 F. Supp. 666, 677

(D.N.J. 1989). Moreover, to interpret the agreement to absolve

defendants of responsibility for additional clean-up actions costing

ten times more than that amount, defies the goal of encouraging

parties to unilaterally engage in cleanup operations. As one court

has noted, “[i]f fair apportionment of the expense is not assured, it

is unlikely that one party will undertake remedial action promptly

when it could simply delay, awaiting a legal ruling on the

contribution liability of other responsible parties.” Smith Land, 851

F.2d 86, 90 (3rd Cir. 1988)."!

Defendants correctly point out that one of the risks that

non-settling parties take is the possibility of winding up shouldering

11. In support of their argument, though, defendants rely on U.S. v. Rohm

& Haas Co., 721 F. Supp. 666 (D.N.J. 1989) and United States v. Bell

Petroleus,. Services, Inc., 1990 U.S. Dist. Lexis 14066 (W.D.T. 1990).

In Rohm & Haas, the defendants settled claims for actual EPA

expenditures, which plaintiffs argued prevented them from obtaining

contribution for those very expenditures and thereby violated equitable

principles because the proportion of costs shared was inequitable.

Specifically, EPA had expended approximately $65,270,000 in its

clean-up efforts. Id. at 671. The government entered into a consent

decree with ten de minimis defendants (defendants who were each

responsible for less than 1% of the damage to the site) and found them

liable in total for $3,034,807. Id. at 672. The case only held that those

defendants could not subsequently be held liable for any additional

proportion of the $65,270,000 -- they were immune from any additional

contribution liability.

In Bell Petroleum, the court approved a consent decree absolving the

settling parties for contribution liability. However, the court was

primarily moved by the fact that settling defendants were on the verge

ot bankruptcy, and that if the court did not approve the consent decree

“it is unlikely the Government would receive any amount of money from

{defendants] Bell or Regal in the end.” Bell Petroleum at S.

42a

a disproportionate share of the clean-up costs. See, e.g., In Re

Acushnet River & New Bedford Harbor, 712 F. Supp. 1019, 1027

(D. Mass. 1989). But this is only with respect to the claims

specifically addressed in the consent decree, not to every possible

claim arising out of the same site. In other words, Section 113(f)(2)

prevents parties from having to pay twice for the same cleanups.

Thus, defendant is immune from further liability for the response

costs incurred by the United States during the time period covered

by the consent decree; defendants are not to pay twice for these

response costs, even if the government later determines that it

underreported those actual costs. Paying twice for the claim sued

upon would in essence penalize the defendants for settling and

reward the plaintiff for holding out. This would directly violate the

policies behind the amendments to CERCLA. But in this case,

defendants, even if they lose. paid only once for the costs incurred

by the EPA.

This holding in no way inhibits Congress’s policy of

encouraging settlements -- there is still strong incentive for settling

for a much lesser amount than what the govemment is suing for.

Thus, in the instant case, if defendants settled for $i million, even

though the suit was for $5 million, and even if they actually were

responsible for a much greater share of the damage, plaintiffs could

not gain contribution for any other portion of the $5 million. Their

unwillingness to settle would have cost them that loss. Such are the

Situations in the cases defendants rely upon. It is not the situation

in this case.

The defendants’ motion for summary judgment must therefore

fail because as a matter of law, the consent decree entered into by

defendants only covers the past response costs and past response

actions incurred by the United States. The problems at Kin-*szc are

43a

enormous and expensive, and defendants cannot escape

responsibility for a potential $100 million by settling with the

government for $4.9 million.

44a

DEFENDANT CLAIROL’S MOTION

In a related action, defendant Clairol moves to strike the plaintiff's

claims against it’* for the following reasons: 1) plaintiffs’ amended

complaint violates Rule 8(e) by failing to be clear and concise; 2)

plaintiffs did not comply with specific nexus information requested

by Magistrate Chesler, by Order of December 19, 1990, thus

warranting a dismissal of plaintiff's pleading pursuant to Rule 16(f);

3) plaintiffs, pleading violates Rule 11 because they have no

objective good faith basis to believe Clairol is liable. Altematively,

Clairol moves for summary judgment under rule 56(b). I will now

tum to each of its arguments.

I. Rule &(e)

First, defendants claim that plaintiff's complaint violates Rule

8(e), which reads that “[eJach averment of a pleading shall be

simple, concise, and direct.’ Fed. R. Civ. P. 7. Defendants rely on

Gordon v. Green, 602 F.2d 743 (Sth Cir. 1979), and Martin y.

Hunt, 29 F.R.D. 14 (D.Ma. 1961) for their contention that the

complaint must be stricken.

Defendants ignore a wealth of case law. including the

principles articulated in the cases they rely on, interpreting Rule &

very liberally. Rule & is intended to “eliminate prolixity in pleading

and to achieve brevity, simplicity, and cianty.”” 602 F.2d at 746

(citing Knox v. First Security Bank of Utah, 196 F.2d 112, 117

(10th Cir. 1952), in other words, to ensure that complaints are

understandable, fair and amenable to response. Only complaints that

2. The relevant portion of plaintiffs’ amended complaint reads: “The

defendants named are each PRPs as generators and/or transporters and/or

haulers of various chemical substances, including hazardous substances,

to the Kin-Buc Landfill Site...”

45a

clearly violate this standard should be stricken. In Gordon itself, the

violative complaint was so garbled, wordy and confused that Chief

Judge Brown titled the first section of his opinion “The Pleadings:

Gobbledygook.”” 602 F.2d at 744. The various complaints and

amendments totalled over 4,000 pages, contained sentences running

full legal pages and was, as the Court put it, “verbose and

scandalous.”” Id. at 745. Judge Brown was quick to point out,

though, that “we do not recede even one inch from the position

expressed by this Court. . . and a host of other cases sounding an

approach of liberality .. . .” Id. at 746. Similarly, the court in

Martin v. Hunt, 29 F.R.D. 14 (D. Mass. 1961), also relied on by

defendants, described the complaint as containing “scandalous and

vituperative’ material. In other words, the case law consistently

holds that in order to warrant dismissal of a case as a violation of

Rule &(¢), the complaint must reach a level of outrageousness that

far exceeds what is alleged here. While arguably lacking in detail,

the complaint is clear and concise enough for defendants to

understand the nature of the complaint and be able to respond and

defend itself.

Il. Rule 16(f)

Next, defendants argue that plaintiffs violated magistrate

Chesler’s Case Management Order No. | of December 19, 1990.

The Order demanded that plaintiffs to provide:

a good faith effort, by way of preliminary presentation,

without obligation to perform definitive or exhaustive review

of matenal, and without prejudice, a detailed description of the

hazardous substance(s) . . . which such defendant allegedly

transported or generated to the Kin-Buc Landfill site.

46a

Rule 16(f) states that “if a party . . . fails to obey a scheduling

or pretrial order . . . the judge, upon motion . . . may make such

orders with regard thereto as are just . . . “* Cases that have been

dismissed for violating this Rule universally have involved

complete disregard of Court orders. For example, in Goforth y.

Owens, 766 F.2d 1533 (1985), relied on by defendants, the plaintiff

did not submit to the court a medical statement that he was ordered

to submit. Id. at 1534. As the court said, “the (distnict] court could

have used the sanction of dismissal to punish counsel for his

disregard of the court’s orders to submit (the statement.|”” Id. at

1535. See also Titus v. Mercedes Benz of North America, 96 F.R.D.

404, 405 (1982) (dismissing complaint for willful violation of court

order); Lockhart v. Patel, 115 F.R.D. 44 (E.D.Ky. 1987) (striking

pleadings of the defendant for “deliberately (refusing] to obey the

order of the court’).

In this case, the plaintiffs responded point by point to the

Nexus order, alleging that Clairol was “(i) a generator; who (ii)

supplied Waste Water, Processed Water Waste, Ink and Dye Waste,

and Water Wash & Detergent... .” By clear implication, plaintiffs

are alleging that Waste Water, Processed Waste Water, Ink and Dye

Waste, and Water Wash and Detergent are hazardous substances. At

this point in the case, when the same Case Management order

limited the ability of plaintiffs to discover defendants’ records, it is

not unreasonable to respond as did plaintiffs. They did not

flagrantly violate or ignore the order, they cannot be held liable

“for conduct which unreasonably delays or otherwise interferes with

the expeditious management of trial preparation.” Id. at 1535. See

also In re Baker, 744 F.2d 1438, 1441 (10th Cir. 1984).

47a

Ill. Rule 11

Next, defendant contends that the pleading violates Rule 11's

good faith requirement. Under Rule 11, an attomey must certify

“that to the best of his knowledge, information and belief formed

after reasonable inquiry, the claim is well grounded .. . in fact and

in law.” The test is reasonableness: By signing the complaint,

attomeys for plaintiff are stating their belief that the complaint is

grounded in fact and warranted by existing law or a good faith

argument for the extension, modification, or reversal of existing

law, and that it is not interposed for an improper purpose, such as

to harass or to cause unnecessary delay or needless increase in the

cost of litigation.” F.R.Civ. P. 11. Defendant simply has not

presented evidence that plaintiff's allegations violate this standard.

Plaintiffs’ relied upon the following facts: 1) Clairol settled a claim

by the EPA for contribution for government clean-up expenditures

at the Site’'’; 2) the wastes alleged by plaintiffs to be hazardous

were in fact deposited at the Site. While defendants contend that the

claim it settled with the EPA was simply a payment of “nuisance

money,” that contention is simply not enough to show a violation

of Rule 11.

IV. Summary Judgment Motion

In the alternative, defendants move for summary judgment,

under Rule 56(b). I have outlined the standard for summary

judgment above. Clairol has not met its burden of showing that

there is no issue of material fact in dispute.

13. Clairol claims this settlement was a nuisance money; at this stage, this

is by no means self-evident.

48a

In this case, Clairol essentially claims that it has not deposited

hazardous waste products at the Site and that there is no evidence

on the plaintiff's part to contest this. It points out that in several

past cases, Clairol has been accused and subsequently acquitted of

disposing hazardous waste at sites, and that the same waste

products are at issue here. But even relying solely on Clairol’s own

accompanying affidavits, material issues of fact remain as to

whether Clairol has deposited hazardous waste products at the Site.

Exhibit B of an affidavit by Mohamed H. Tanifi, a Clairol

employee, lists a series of compounds that “May be Present in

Clairol Concentrate Waste.” Among these are “ammonia” and

“Ethyl, Lauryl, & Other Ethers.” As plaintiffs correctly point out,

both of these are listed by the E.P.A. as hazardous substances under

CERCLA. 40 C.F.R. § 302.4. In its reply brief, Clairol dismissively

states that “as any simple textbook analysis would disclose,

ammonia very rapidly becomes neutralized and tums into a

harmless salt.’ The claim is that ammonia cannot “possibly generate

response costs,”” but the fact is that the EPA has listed ammonia as

a hazardous substance’*.

Even if this contention about ammonia was persuasive,

Clairol’s argument about ethyl ether is clearly disingenuous. It

contends that the item “Ethyl and Other Ethers” in Appendix B

refers only to the chemical prefix “ether’’ and not to Ethyl Ether,

the compound contained in the EPA’s list. Yet the only reasonable

interpretation of the language “Ethyl, Lauryl, & Other Ethers” is

14. See U.S. v. Alcan Corp. 1992 U.S.App. Lexis 10366 at 22 (3rd Cir. May

14, 1992) (To be hazardous under CERCLA, “the substance under

consideration must simply fall within one of the designated

categories.”’).

49a

that the items referred to are Ethyl Ether, Lauryl Ether and Other

Ethers. In another affidavit, Clairol nonetheless claims that its

products contain no ethyl ether, but the contradictory statements in

its supporting materials create enough questions to deny a motion

for summary judgment. The opposing party to a motion for

summary judgment bears the burden of responding “only after the

moving party has met its burden of coming forward with proof of

the absence of any genuine issues of material fact.” Celotex Corp.

v. Catrett, 477 U.S. 317, 321 (1986) (quoting Catrett v.

Johns-Manville Sales Corp., 756 F.2d 181, 183, n. 3 (D.C. Cir.

1985). Defendants have not met this burden.

Moreover, summary judgment generally should not be granted

before an opportunity for discovery. See, e.g. Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). In a complex case such as this,

in which much of the evidentiary material is in the depositors

hands, discovery is all the more imperative. See, e.g., United States

v. Price, 577 F.Supp. 1103, 1115 (1983) (“Most courts are reluctant

to grant summary judgment prior to the termination of discovery .

.. . [In situations . . . where a plaintiff must obtain a good deal of

information from the opposing party, judgment should be withheld

unti! the discovery process has been completed.’’) Therefore, the

motion for summary judgment is denied.

CONCLUSION

For the foregoing reasons, the settler-defendant’s motion to

dismiss and defendant Clairol’s motion to strike the complaint, or

in the altemative for summary judgment, are denied.

S$0a

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

TRANSTECH INDUSTRIES, :

INC., et. al.

Plaintiffs Civil Action No. 90-2578

V. ORDER

A & Z SEPTIC CLEAN,

et. al.

Defendants.

Ackerman, D.J.

This matter having come before the court on by a

class of settling defendants for partial summary judgment pursuant

to Fed. R. Civ. P. 56(b), and a motion by defendant Clairol to strike

the complaint or in the altemative, for summary judgment pursuant

to Rule 56(b); and this court having fully considered the submitted

Sla

briefs and the record before it; and for the reasons expressed in my

opinion issued this same day: and for good cause shown;

IT IS ON THIS 30th day of July, 1992

ORDERED that the settling defendants’ motion for summary

judgment is denied; and it is further

ORDERED that defendant Clairol’s motion to strike the

complaint is denied; and it is further

ORDERED that defendant Clairol’s motion for summary

judgment pursuant to Rule 56(b) is denied.

/s/ Harold A. Ackerman

Harold A. Ackerman,

United States District Judge

52a

APPENDIX C

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

TRANSTECH INDUSTRIES, :

INC., et. al.

Plaintiffs Civ. No. 90-2578 (HAA)

v. OPINION

A & Z SEPTIC CLEAN,

et. al.

Defendants.

ACKERMAN, District Judge:

This action comes before the court upon a motion by the

“settor-defendants” (“defendants or “settlor-defendants”) for

reargument of Section III(c) of this Court’s July 40 Opinion

denying the settlor-defendants’ motion for summary judgment, or,

in the altemative, to certify the matter for an interlocutory appeal

to the Third Circuit.

For the reasons outlined below, both motions are denied.

53a

I. Background

For the past several years, plaintiffs have been under orders

from the Environmental Protection Agency to clean up the Kin-Buc

toxic waste site in New Jersey. In 1990, plaintiffs sued hundreds of

defendants for contribution costs pursuant to the Comprehensive

Environmental Response Control and Liability Act (“CERCLA”).

About 200 of the defendants then moved to dismiss the Complaint

against them because, they contended, they previously had resolved

their liability to the Government for all clean-up costs related to the

Site, and therefore they were immune from contribution liability

pursuant to CERCLA Section 113(f)(2). Section 113(f)(2) provides

immunity from contribution liability for all parties that settle with

the Government, for all the matters covered in the Consent Decree.

Because the parties relied on documents other than those in the

pleadings, I elected to treat the motion as one for summary

judgment, and the parties were asked to submit appropriate papers.

On July 30, 1992, I issued a ruling denying the settlor--

defendants’ motion for summary judgment, on the grounds that the

Consent Decree entered into with the Govemment by the settlor--

defendants did not cover the contribution costs sought by plaintiffs.

The settlor-defendants now move for reargument of that decision,

or in the alternative, to certify the issue for interlocutory appeal. |

address these motions in tum.

II. Discussion

A. Motion for Reconsideration

Local Rule 12(1) provides that reargument may be granted

“when there is some dispositive decision or principal of law which

has been overlooked, or when there has been a misapprehension of

material facts.’ Reargument should not be granted when a party

disagrees -- however vehemently -- with the Court’s decision, and

should not be granted when the moving party simply rehashes

arguments made before the Court upon the original motion.

In this case, the settlor-defendants claim that (1) this Cour

misapprehended material facts about the nature of the Govemment’s

lawsuit that resulted inthe Settlkement Agreement and about the

costs at the Site; (2) this Court overlooked a controlling principle

of law in reaching its decision. Because the “facts” allegedly

overlooked are not “material” and because the “controlling principle

of law” allegedly overlooked involves not an oversight by the Court

but simply a disagreement between the Court and _ the

settlor-defendants about what was covered in the consent decree, |

am prepared to deny the motion outnght. But the

Settlor-Defendants, in their moving papers, essentially accuse the

Count of engaging in result-oriented decision-making in its decision

on defendants’ motion. This accusation is totally devoid of merit.

Nevertheless, in the interest of justice, I will address defendants

arguments in tum.

First, defendants contend that this court misapprehended the

breadth of the govemment’s suit. They assert that the Government

sued for all past and future response costs at the site. However, in

its Opinion on this case, this court found that when tracing the

history of the Site, the Governmment’s suit was based on the costs it

incurred at the Site and any future costs the Government may 6CCur

t

5Sa

related to its expenses at the Site. Prior to seeking restitution from

defendants in May 1984, the EPA issued an administrative order

pursuant to CERCLA § 106 (the “106 Order”), requiring plaintiffs

to clean up the Site. Once plaintiffs assumed responsibility for

future clean-up of the: Site, the EPA ceased its clean-up activities.

Its only concem then was to acquire restitution for its past costs --

the bulk of the ‘york at the Site was already to be taken care of by

plaintiffs. In fact, the Consent Decree entered by the Goverment

and the Settlor-Defendants states that “the United States intends and

expects that the Kin-Buc 106 Orders shall remain in full force and

effect against the Owners/Operators [plaintiffs] and that said Orders

shall result in the abatement of reiease and threat of release into the

environment of hazardous substances at the Kin-Buc Landfall.”

Thus, recognizing the separateness of the plaintiff's duty to clean

up the Site, the EPA sought from defendants restitution and

declaratory relief for any future costs it may incur related to its

expenses at the Site. The Government was not seeking in any way

to determine the settlor-defendants’ liability for remediation costs

to be incurred by other private partics. Any other costs besides the

$4.9 million were purely hypothetical at the time of the

Govemment’s suit -- despite the fact that plaintiffs were responsible

for actual clean-up costs, though of an unknown amount. This

should at any rate, be clear since the Govemment provided in the

consent decree that the approximately $4.9 million received from

the Settlor-Defendants was in satisfaction of its prior expenses by

the Site, and that the Settlement covered any further such costs the

Govemment may incur. It seems beyond logic that the Government

-- suing for and receiving the identical amount of its own clean-up

costs--would gratuitously exonerate defendants from any further

liability for all clean-up costs at the Site.

S6a

At any rate, even if the moving defendants were correct on

that point, the scope of Settlor-Defendants immunity is govemed by

the Consent Decree, not the lawsuit. 42 U.S.C. § 9613(f)(2) (“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.” (emphasis added)). As I explained in my earlier

Opinion, the text of the Consent Decree itself, the interpretation of

the judge who approved the settlement, and the policies behind

CERCLA all favor this court's interpretation of the settlement.

Second, the defendants argue that the court overlooked the fact

that when a party resolves its liability to the Govemment, it also

resolves its liability to all other relevant parties. However,

defendants ignore the language of section 113(f)(2), which clearly

allows immunity only for matters addressed in the settlement. This

court found that the Consent decree covered costs incurred at a

particular point in time and_ future’ hypothetical

Govemment-incurred costs. Defendants’ reliance on language in

Smith Land Improvement Corp. v. Celotex Corp., 851 F.2d 86, 89

(3d Cir. 1988), cert. denied, 488 U.S. 1029 (1989) (“A party which

has resolved its liabilities to the government is not liable for

contnbution . . . .”) is misplaced. The Court of Appeals’ statement

was made in the context of a suit for restitution of costs of a

completed clean-u7, no discussion of left-over clean-up matters was

necessary. Therefore, the Third Circuit, while certainly aware of the

limiting language in Section 113(f)(2) -- that immunity is provided

only for matters addressed in the Settlement Agreement --

obviously saw no need to quote that part of the statute. In this case,

if the United States engaged in more on-site clean-ups, and obtained

contribution from other parties, the settlor-defendants would be

immune from contribution suits by those other parties. Under

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defendants’ interpretation of Smith Land, the Government would

never be able to sue solely for particular expenses related to the

unfinished clean-up of a Site. Therefore defendants’ contention that

this Court overlooked controlling law amounts to nothing more than

a strident allegation that this Court disagreed with defendants’

argument.

Third, the defendants argue that this court misapprehended

Judge Lechner’s opinion approving the Settlement Agreement

between the Settlor-Defendants and the Government -- particularly

this Court’s finding that Judge Lechner held that the Setuement

Agreement allowed private contribution actions. Defendants’

arguments here amount only to a rehash of their prior arguments,

which were rejected by this court in its interpretation of Judge

Lechner’s opinion, and are not proper on 4a motion for

reconsideration, see Above the Belt, Inc. v. Mel Bohannan Roofing,

Inc. 99 F.R.D. 99, 101 (E.D. Va. 1983). However, since

defendants’ accuse this Court of “distorting” a passage in Judge

Lechner’s Opinion to reach the result it wanted, I will address their

main argument. The passage in question, quoted in its entirety,

reads as follows:

Thus, as long as Earthline (a non-settling party] complies with

its legal obligations and no action is brought against it by the

United States, paragraph 8(c) [which requires the Government

to Oppose an attempt to join the Settlor-Defendants to an

action commenced by the Government against the plaintiffs]

will not apply and Earthline may seek contributions from the

settling parties without opposition from the Government.

Defendants argue that the language “does not state or even imply

that any such attempt would be free from a challenge by the Settlor-

Defendants as being precluded by operation of Section 113(f)(2).”

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(emphasis in original). Defendants’ argument, then, is that Judge

Lechner simply said that Earthline could theoretically seek

contribution, but would fail if they tried. I find that interpretation

difficult to believe. Judge Lechner clearly -- even when quoted at

length -- interpreted the Consent Decree to allow private

contribution suits. According to Judge Lechner, as long as Earthline

was meeting its burdens of clean-up under the law, it could sue for

contribution costs. (Defendants’ counsel makes its argument here by

quoting Judge Lechner’s allegedly misrepresented statement in

CAPITALIZED BOLD letters. This not-too-subtle attempt to accuse

this Court of misstating the record is a sad commentary on

counsel's perception of its professional responsibilities. If one

wanted to be cynical, one might draw the conclusion that

defendants’ counsel was engaging in intimidatory behavior. This

Court would prefer to believe that counsel's warped desire to win

its argument at any cost has merely clouded its judgment.)

Defendants next argue that the court exceeded its authority by

reexamining the faimess of the Settlement Agreement. Specifically,

defendants point to the Court's basing part of its argument on

plaintiffs’ current estimate of its costs in cleaning up the Site.

Indeed, in the Opinion, | noted that “defendants cannot escape

responsibility for a potential $100 million by settling with the

government for $4.9 million.” In fact, defendants argue, the

estimate at the time of the consent decree was about $41.5 million.

The point, however, was that plaintiffs’ burden in cleaning up the

Site was potentially enormous -- conceivably ever-growing and at

any rate much more than costs bome by the Government in its

limited actions at the Site. The $100 million figure was simply

evidence to support this court’s interpretation of the Consent

Decree, the document that essentially govems the outcome of the

59a

Summary Judgment motion; this court engaged in no reexamination

of the settlement’s faimess.

Finally, defendants argue that shortly before the decision came

down, the Settlor-Defendants received a document from the EPA

that put the entire remediation costs at Kin-Buc at $36.6 million,

rather than $100 million. The point is well taken, but ultimately not

dispositive of the motion. First, plaintiffs dispute this fact,

contending in its brief in response to defendants motion that the

Settlement Decree covered only 5% of the costs of remediation at

the Site. Second, the unfairness argument was but one prong of a

multi-layered analysis of why the language of the Consent Decree,

Judge Lechner’s interpretation of the Consent Decree, the statutory

provisions, and the policies behind CERCLA and its amendments

all point to interpreting the Decree in the way that this court did.

Finally, all that this shows is that plaintiff's cosis are

indeterminable at this time.

Defendants motion for reconsideration is denied, and this

Court's prior Order is affirmed and its prior Opinion affirmed and

clarified in accordance with this opinion.

I now tum to Defendants motion to certify the question for

interlocutory appeal.

B. Certification for Interlocutory Appeal

An issue may be certified for interlocutory appeal when it (1)

involves a controlling question of law for which; (2) there is

substantial ground for difference of opinion; and (3) an immediate

appeal may materially advance the ultimate termination of the

litigation. Only when all three of these factors are present may a

district court certify a question for interlocutory appeal. Karz v.

Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir. en banc); cert

60a

denied, 419 U.S. 885 (1974). As plaintiffs point out, certification is

the exception and not the rule, and should be granted sparingly.

Defendants propose, as examples, the following issues for

appeal:

(1) Whether a judicially approved consent decree resolving the

settling parties’ liability to the Govemment in an action

commenced by the Govemment seeking the full clean-up costs

at a site that releases the settling party from any liability for

past response costs and provides a covenant by the

Govemment not to sue or commence any administrative action

against the settling parties for future clean-up cosis at the site

addresses both past and future clean-up costs within the

meaning of 42 U.S.C. §9613(f)(2); and

(2) Whether a judicially approved consent decree settling an

action commenced by the Government for the full clean-up

costs at a site that resolves the settling parties’ liability to the

Goverment by releasing the settling parties from any liability

for the Government's past cleanup costs and providing a

covenant by the Govemment not to sue or commence any

administrative action against such settling parties for any

future clean-up costs at the site so long as the Government is

able to obtain the same from non-settling parties (which the

Goverment has been and continues to be able to do) provides

contribution protection to settling parties under 42 U.S.C.

§9613(f)(2) against claims by non-settling parties for clean-up

costs at the Site.

While defendants are correct in their argument that if this

Court's decision was reversed by the Third Circuit, this litigation

would be cut short with respect to the moving parties, and while at

a very general level the issues here involve the application of

CERCLA Section 1 13(f)(2), the crucial part of this Court’s decision

on the settlor-defendants’ motion involved a question of fact.

6la

Actually, despite defendants’ hostile briefs, the Court and the

defendants are generally in agreement on the controlling law. The

only remaining issue is the scope of the consent decree. I found in

the original opinion that the language of the consent decree, the

interpretation of the Consent Decree by Judge Lechner, and my

close reading of the Consent Decree in light of the policies behind

CERCLA and the factual scenario behind the Kin-Buc Site, clearly

show that the Consent Decree was not intended to cover this

contribution suit by plaintiffs. I frankly believe that it would defeat

the purpose of the narrow rules for certification to certify such an

issue for immediate appeal. An interpretation of the scope of a

consent decree -- a task that any court interpreting Section 113(f)(2)

must undertake -- is simply not such an exceptional condition to

warrant certification.

CONCLUSION

For the foregoing reasons, the settlor-defendants’ motion for

reconsideration and for certification for an interlocutory appeal are

both denied.

62a

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

TRANSTECH INDUSTRIES, :

INC., et. al.

Plaintiffs Civ. No. 90-2578 (HAA)

v. ORDER

A & Z SEPTIC CLEAN,

et. al.

Defendants.

ACKERMAN, District Judge:

This matter having come before the Court upon a motion by

the Settlor-Defendants for reconsideration of this Court’s July 30

decision denying the settlor-defendants’ motion for summary

judgment, or in the altemative, for Certification for an Interlocutory

Appeal, and this Court, having fully considered the submitted briefs

and the record before it, and for the reasons expressed in an

Opinion issued this same day; and for good cause shown,

IT IS ON THIS 7th day of October, 1992;

ORDERED that the _ Settlor-Defendants, motion for

reconsideration is denied; and it is further

63a

ORDERED that the Settlor-Defendants motion for Certification

for an Interlocutory Appeal is denied

s/ Harold A. Ackerman

Harold A. Ackerman,

United States Distnct Judge

64a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CIVIL ACTION No. 90-2578

TRANSTECH IND. INC.,

Plaintiff, TRANSCRIPT

OF PROCEEDINGS

-vs-

MOTION

A & Z SEPTIC CLEAN, et al,

Defendants.

Newark, New Jersey

December 13, 1993

BEFORE:

THE HONORABLE HAROLD A. ACKERMAN, U:S.D.J.

APPEARANCES:

KOZLOV, SEATON, ROMANINI & BROOKS

BY: DANTE J. ROMANINI, ESQ.

Attomeys for the Plaintiffs

SIMPSON THACHER & BARTLETT

BY: ROBERT A. BOURQUE, ESQ. and

DAVID B. SMALLMAN, ESQ.

Attomeys for Defendant Mayco Oil & Chemical Co.

65a

THE COURT: May I have the appearances, please.

MR. BOURQUE: Robert Bourque, Simpson, Thacher &

Bartlett, representing Mayco Oil and Chemical, one of the

defendants in this action.

And on behalf of the 15 other defendants.

THE COURT: Robert?

MR. BOURQUE: B. O. U. R. Q. U. E., Bourque.

MR. ROMANINI: Dante Romanini, from the firm of Kozlov,

Seaton, Romanini & Brooks. I represent the plaintiffs.

THE COURT: Mr. Bourque, you've been admitted before pro

hac vice?

MR. BOURQUE: Yes, I have.

THE COURT: You've been admitted before pro hac vice in

this case?

MR. BOURQUE: In this case, yes, | am.

THE COURT: I've read your papers, sir.

MR. BOURQUE: We're seeking a stay —

THE COURT: A stay until—have you filed your writ of

certiorari yet?

MR. BOURQUE: We have not. It’s due the 17th. We intend

to file it on or before the 17th.

THE COURT: I read your papers, anything you want to add

to your papers?

66a

MR. BOURQUE: It is entirely in our papers, you Honor. I'd

be glad to amplify anything that you'd be interest in, but | think

our papers fully set forth our position.

I might note one thing, your Honor, that I'm not sure that has

come up recently. There is a conference before Magistrate Chesier

that's scheduled for January 14th in which further discovery will be

discussed. Included expressly on the agenda is scheduling of

depositions in this matter of all parties.

THE COURT: Mr. Romanini, is that the correct way to

pronounce your name?

MR. ROMANINI: Yes, it is. your Honor.

THE COURT: | read your papers as well.

MR. ROMANINI: I really don’t have anything to add as well.

| think having gone through this once all ready we pretty much

know what each side is going to do.

THE COURT: Let me say at the outset, I'm going to grant

the stay. I'm going to grant the stay because, first of all, I'm aware

of the fact that the Third Circuit did not feel this was an appealable

order within the collateral order doctrine rule. As such, as the

movants have pointed out here, and the court itself, they were

disagreeing with opinions rendered by, what is it, three or four

other circuits?

MR. BOURQUE: Four circuits, your Honor.

THE COURT: Four circuits. Since then the Supreme Cour of

the United States in a matter in which it is not precisely the same

but there are certain principals of law which mirror each other. The

Supreme Court in the Desk Top case—both counsel know what

67a

case I'm talking about-—has granted certiorari. Counsel for—how

many defendants are there, 17?

MR. BOURQUE: 16, your Honor.

THE COURT: 16. All right. I'm up-to-date. 16 defendants

have indicated—are they all going to apply for certioran?

MR. BOURQUE: Yes, they are.

THE COURT: They're going to apply for certiorari. And I've

given it a good deal of thought, I feel since they have represented

they will do so, today is the 13th, so we're four days away, until

that Court makes a determination as [o whether it will grant

certiorari in their case, or not, a Stay should be given.

Would you draw an order?

MR. BOURQUE: We will, your Honor.

MR. ROMANINI: Thank you, your Honor.

MR. BOURQUE: We did submit an order with our papers.

your Honor. But we'd be happy to give you another.

THE COURT: I haven't seen it. I'm sure it must be in the

file.

My clerk assures me it’s in the file. We'll sign it and get it off.

Thank you.

MR. ROMANINI: Your Honor, the stay is only as to the 17

parties that have applied”?

THE COURT: That is correct. Only as to the !7 parties.

And counsel will notify me one way or the other as to what

the Supreme Court of the United States does.

68a

MR. BOURQUE: We'll do that, your Honor

THE COURT: Thank you.