Hercules Incorporated (Board decision, June 25, 2007)

Plain-English summary

The Environmental Appeals Board had stayed Hercules Incorporated's CERCLA reimbursement proceeding while related federal court litigation was pending. After that litigation concluded, Hercules moved to terminate the stay and withdraw its petition with prejudice. Hercules cited the federal court decisions and stated that the courts had denied or declined to hear its requests for relief. The Board granted the motion, terminated the stay, and dismissed the petition with prejudice.

Decision snapshot

• Cited authorities: CERCLA § 106(b), 42 U.S.C. § 9606(b).
• Outcome: Procedural. The stay was terminated and the reimbursement petition was dismissed with prejudice.
• Key point: The Board closed the stayed reimbursement proceeding after the petitioner withdrew it following related federal litigation.

Full text (EPA EAB public release)

             BEFORE THE ENVIRONMENTAL APPEALS BOARD
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C.

In re:

Hercules Incorporated, CERCLA 106(b) Petition No. 98-2

     Petitioner


                       ORDER TERMINATING STAY AND
                    DISMISSING PETITION WITH PREJUDICE

     On January 29, 1998, the Environmental Appeals Board granted the motion for stay of

further proceedings in this matter filed by the Director of the Superfund Division, Region 6, United States Environmental Protection Agency (the "Region"). The Region's motion brought to the attention of this Board the case of United States v. Vertac Chemical Corporation, et al., C.A. No. 80-109, (E.D. Ark) (the "Vertac Case"), which involved many of the same transactions or occurrences that underlie the petition of Hercules Incorporated ("Hercules") in the present matter. Due to potentially common issues of fact and law between the Vertac Case and the present matter, the Region requested that the stay in this matter continue "until the judgment in the District Court is final, either by the expiration of the time within which to appeal from a final judgment disposing of all claims, or at such time as all appeals have been exhausted in the Vertac Case between the United States and Hercules and judgment is final."

     On June 18, 2007, Hercules filed a motion seeking to terminate the stay in the present

matter and to withdraw with prejudice its CERCLA § 106(b) petition for reimbursement in view of the conclusion of the above-referenced federal court litigation. Citing United States v. Vertac Chem. Corp., 364 F. Supp. 2d 941 (E.D. Ark. 2005), aff'd 453 F.3d 1031 (8th Cir. 2006), cert. denied, ___ U.S. ___ (Apr. 23, 2007) (No. 06-865), Hercules states that "[t]he Courts have now denied, or declined to hear, the requests of Hercules * * * for relief on divisibility, administrative law, and constitutional law grounds."

   For the foregoing reasons, Hercules' motion to terminate the stay is hereby granted,

Hercules' request to withdraw with prejudice its Petition for Reimbursement Pursuant to 42 U.S.C. § 9606(b) is hereby granted, and this matter is hereby DISMISSED WITH PREJUDICE.

   So ordered.


                                          ENVIRONMENTAL APPEALS BOARD


                                          [signature]
                                          Scott C. Fulton,
                                          Environmental Appeals Judge

   Dated: June 25, 2007


                           CERTIFICATE OF SERVICE

   I hereby certify that copies of the foregoing Order Terminating Stay and Dismissing

Petition with Prejudice in the matter of Hercules Incorporated, Petition No. CERCLA 106(b) 98- 2, were sent to the following persons in the manner indicated:

First Class Mail
Postage Prepaid: W. Gordon Hamlin, Jr.
V. Bob Denham, Jr.
Powell Goldstein LLP
One Atlantic Center, 14th Floor
1201 West Peachtree Street, N.W.
Atlanta, GA 30309-3488

                        Amy S. Cohen
                        Office of General Counsel
                        Hercules Incorporated
                        Hercules Plaza
                        Wilmington, Delaware 19894

By Pouch Mail: James L. Turner
Senior Attorney
Litigation & Enforcement Branch (6SF-DL)
Superfund Division
U.S. EPA, Region 6
1445 Ross Avenue, Suite 1200
Dallas, TX 75202

                        Annette Duncan
                        Secretary
                        U.S. Environmental Protection Agency