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United States v. Hardage

Citation: 17 ELR 21082
No. No. CIV-86-1401-W, 26 ERC 1042/(W.D. Okla., 02/25/1987) Appointment of special master

The court appoints a special master in a suit brought by the United States under § 106 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against parties potentially responsible for conditions at an Oklahoma hazardous waste site. The court first holds that exceptional conditions exist within the meaning of Federal Rule of Civil Procedure 53(b), which allows for the appointment of a special master in a jury case where required by exceptional conditions. There is the potential for an imminent and substantial endangerment to public health as a result of conditions at the site. Moreover, the liability and apportionment issues in the case are complex. There are claims by the government against 33 defendants, crossclaims among defendants for apportionment of any court-ordered cleanup, and the possibility of impleaders of additional defendants; there are also requests for division of the litigation into liability and damage phases and disagreements as to which should be resolved first. The number of parties and the commingling of waste at the site further complicate resolution of the issues. Finally, the amount of discovery that will be required will require extensive supervision.

The court holds that the scope of the special master's authority includes the submission of technical advice to the court. Despite the federal government's argument that this conflicts with its policy regarding the use of masters, masters have been used in similarly complex remedial actions involving equitable decrees. The court also holds that a special master may be appointed to supervise discovery. The court allows the master to rule on the admissibility of evidence, to supervise and issue recommendations on pretrial matters, and to hold hearings on the injunctive relief and apportionment claims. The court establishes a fund for the master's compensation, to be paid for by the parties, noting that it may assess a losing party for the full share of the master's fee, and approves an hourly rate of $100.

[Previous decisions from this litigation are published at 17 ELR 20242, 20738, and 20741.]

Counsel are listed at 17 ELR 20242.