ELR Citation: ELR 21575
No(s). 94-50323 (5th Cir. Sep 15, 1995)

The court holds that a district court apportionment of a chrome electroplating facility operator's liability under the Comprehensive Environmental Response, Compensation, and Liability Act for the costs of cleaning up chronium contamination in the Trinity Aquifer was erroneous. In an earlier appeal, the court had held that the operator had established a reasonable basis for apportioning liability, and remanded to the district court "for further proceedings" regarding apportionment. The district court determined that the remand order precluded consideration of additional evidence, and fixed the operator's percentage of liability at 4 percent of the cleanup costs based on existing evidence. The appellate court first holds that when an appellate opinion contemplates further proceedings, the district court retains the discretion to admit additional evidence. The court reverses and remands to allow the district court to exercise its discretion to admit and consider evidence. The court next holds that the U.S. Environmental Protection Agency (EPA) did not waive its right to submit evidence on the operator's share of liability or its right to allege error, even though EPA introduced no evidence at the apportionment phase of the trial. Because the district court had already declared the operator jointly and severally liable, EPA's failure to present evidence on allocation of liability was understandable. The court next affirms the district court's dismissal of EPA's motion to hold the operator liable for all costs as a successor to defendants that the court dismissed. Before the first appeal, the district court dismissed the motion as moot based on its approval of a partial consent decree. EPA renewed its motion when the appeals court reversed the imposition of joint and several liability, and the district court again held the motion moot. The court holds that a second appeal generally brings up for review nothing but proceedings subsequent to the mandate following the prior appeal. The court holds that the reversal of joint and several liability does not affect the validity of the mootness ruling, because that ruling was based on the consent decree, not on joint and several liability. The court affirms the district court's holding that the costs of conducting a focused feasibility study that proposed alternative remedies are recoverable response costs. Although the court previously disallowed the costs of a remedy that resulted from the study because the remedy was arbitrary and capricious, the court did not hold that the initial decision to undertake a focused feasibility study was arbitrary and capricious.

[Other decisions in this litigation are published at 20 ELR 20533, 21117, and 21120, and 21 ELR 20374.]

Counsel for Plaintiff
Albert M. Ferlo Jr.
Environment and Natural Resources Division
U.S. Department of Justice, Washington, DC 20530
(202) 514-2000

Counsel for Defendants
James B. Harris
Thompson & Knight
1700 Pacific Ave., Ste. 3300, Dallas TX 75201
(214) 969-1102

Before WISDOM, DUHE, and BARKSDALE, Circuit Judges.