Appeal and cross-appeal from an order of the District Court for the Eastern District of New York (Henry Bramwell, Judge) holding defendants in civil contempt and imposing $1,000 per day coercive fine for failure to obey three orders entered in the course of litigation under the Federal Comprehensive Environmental Response, Compensation, and Liability Act and state public nuisance law. Adjudication of contempt affirmed, amount and timing of coercive fine modified, and cause remanded for further proceedings.
JON O. NEWMAN, Circuit Judge:
Shore Realty Corporation and its controlling officer, Donald LeoGrande, appeal from an order of the District Court for the Eastern District of New York (Henry Bramwell, Judge), entered March 26, 1985, holding them in civil contempt for failure to obey three orders previously entered in the course of litigation brought by the State of New York to require Shore and LeoGrande to remove hazardous chemicals from Shore's waterfront property in Glenwood Landing, New York. Judge Bramwell imposed a coercive fine of $1,000 a day until compliance with his orders. For reasons that follow, we affirm the adjudication of contempt, modify the amount and timing of the coercive fine, and remand for further proceedings.
The three orders were entered in litigation brought by the State of New York in February 1984 under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601-9657 (1982) ("CERCLA") and New York public nuisance law. On June 15, 1984, the parties stipulated to entry of an order ("the June order") requiring the defendants to remove approximately 410 drums of hazardous chemicals stored on the property. On October 30, 1984, the District Court, having granted the State's motion for partial summary judgment, entered an order of permanent injunction ("the October order") requiring the defendants to remove all of the approximately 700,000 gallons of hazardous chemicals, most of which are contained in five large tanks located on the property. Defendants appealed the October order to this Court and promptly sought a stay pending appeal. On January 18, 1985, the District Court entered an order ("the January order" or "the discovery order") requiring the defendants to answer interrogatories and produce documents concerning their financial condition.
While the appeal and the stay motion were pending, the State initiated proceedings to hold Shore and LeoGrande in civil contempt for failure to comply with the June, October, and January orders. In an order filed March 26, 1985, after an evidentiary hearing, the District Court found both appellants in civil contempt for failure to comply with all three orders. As a coercive sanction, Judge Bramwell imposed a $1,000 per day fine effective from March 21, 1985, the date the contempt adjudication was made and placed on the record in open court, until appellants (1) execute a contract with a qualified hazardous waste remover for the removal and final disposition of the 700,000 gallons of chemical waste on the property, (2) commence actual physical removal of such waste, and (3) comply with the discovery order. The fine was directed to be paid to the United States Treasury instead of the New York Hazardous Waste Remedial Fund, as the State had requested.
The defendants promptly appealed the contempt order and sought a stay. The State cross-appealed that portion of the contempt order directing payment of the daily fine to the United States Treasury. On April 3, 1985, this Court entered an order with respect to both the initial motion to stay the District Court's October order (the motion had been held in abeyance) and the subsequent motion to stay the contempt order. Our April 3 ruling provided that the contempt order and the daily fine would be stayed upon the posting of a $150,000 supersedeas bond conditioned upon (1) compliance by April 15, 1985, with both the June order for removal of the 410 drums and the discovery order, and (2) compliance by May 3, 1985, with that part of the March 26, 1985, contempt order requiring both execution of a contract for removal of the 700,000 gallons and commencement of actual removal. As we construe the April 3 ruling, it also contemplated a stay of the District Court's October ruling on the same conditions on which the contempt order was to be stayed. We expedited the appeal from the contempt order. Since the appellants did not post the required supersedeas bond, the stay authorized by our April 3 ruling never became effective and consequently the October order, the contempt order, and the daily fine have remained in full force.
On April 4, 1985, one day after our ruling on the stay application, we affirmed the District Court's grant of partial summary judgment and the October order requiring the defendants to remove the 700,000 gallons of hazardous chemicals. New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir. 1985). Before us now are the expedited appeal and cross-appeal from the contempt order.
Initially, the State contends that the contempt order is not appealable at this point since the underlying action has not been concluded by a final judgment. See Martin-Trigona v. Shiff, 702 F.2d 380, 387 (2d Cir. 1983). However, the June order requiring removal of the 410 drums and the October order requiring removal of the 700,000 gallons are permanent injunctions. As to such orders, a contempt adjudication is a post-judgment proceeding from which an appeal may be taken, even if some aspects of the underlying litigation, such as damages, remain to be determined. See New York Telephone Co. v. Communications Workers of America, 445 F.2d 39, 44-46 (2d Cir. 1971); see also Emery Air Freight Corp. v. Local Union 295, 449 F.2d 586 (2d Cir. 1971), cert. denied, 405 U.S. 1066, 31 L. Ed. 2d 796, 92 S. Ct. 1500 (1972). The contempt adjudication for violation of the discovery order is sufficiently related to the merits of the adjudication for violation of the June and October orders to warrant the exercise of pendent appellate jurisdiction, even if the discovery contempt might not be appealable independent of the other adjudications, see International Business Machines Corp. v. United States, 493 F.2d 112, 114-15 (2d Cir. 1973), cert. denied, 416 U.S. 995, 40 L. Ed. 2d 774, 94 S. Ct. 2409 (1974).
The defendants challenge the merits of the contempt adjudication with respect to violation of the June and October orders on the ground that circumstances that became known after the issuance of the contempt order have increased the costs of compliance beyond their financial capacity. They rely on the principle that a person may not be held in civil contempt and subjected to coercive sanctions if he is unable to comply with the court's order. Maggio v. Zeitz, 333 U.S. 56, 76, 92 L. Ed. 476, 68 S. Ct. 401 (1948); In re Sobol, 242 F. 487, 489 (2d Cir. 1917). They further contend that a contemnor may assert on appeal circumstances occurring since the contempt adjudication that render compliance impossible. See Shillitani v. United States, 384 U.S. 364, 371-72, 16 L. Ed. 2d 622, 86 S. Ct. 1531 (1966).
The factual predicate for this contention is the discovery of larger quantities of PCB's (polychlorinated ) than originally estimated in some of the 700,000 gallons of waste chemicals required to be removed. The defendants contend that the higher levels of PCB's, which make removal and ultimate disposition of the chemical wastes more expensive, have increased the cost of compliance from an original estimate of between $1 million and $1.3 million to a current estimate of approximately $2.25 million. The per gallon cost of removing the contents of one tank, originally estimated at 26 cents to 30 cents is now alleged to be $3 to $5. Furthermore, the defendants contend that, even though LeoGrande had previously acknowledged that his financial resources were sufficient to meet an obligation costing $2.3 million, he cannot now pay the currently estimated cost of compliance, nor eve the originally estimated cost. He contends that the credit formerly available to him has been drastically curtailed as a result of this Court's affirmance of the October order, with its consequent imposition upon him of extensive personal liability. Apparently the contention is that he could raise funds, at least to a considerable extent, until a court ruled that he was required to do so. We acknowledge that the irony of that contention does not necessarily undermine its validity. The corporate defendant is alleged to have no assets other than the property on which the chemicals are located. The defendants contended at argument that they had already spend $400,000 for monitoring and removal.
Unlike Shillitani, where impossibility of compliance arose from the expiration of the term of the grand jury before which the contemnor had been ordered to testify, the claim of impossibility in this case cannot be determined on appeal from undisputed facts. On the contrary, the critical facts concerning both the costs of compliance and defendants' financial ability to meet these costs are matters of serious dispute. The State contends that the increased levels of PCB's are concentrated in an oily layer of liquid floating at the top of the fluids in one of the five tanks. The state has presented an expert's affidavit contending that removal of this oily layer will increase the original cost slightly but not nearly to the extent claimed by the defendants. The defendants' financial resources are also in dispute. We were advised at oral argument that compliance with the January discovery order has now been made, but the response has been submitted to the State under a protective order and is not part of the record on this appeal. Under these circumstances, it is obvious that determination of whether and to what extent the defendants are financially able to remove the 700,000 gallons of chemical waste must be made in the District Court after careful examination of the relevant facts.
The impossibility defense is aimed primarily at the adjudication of contempt for violation of the October order requiring removal of the 700,000 gallons. As to the June order requiring removal of the 410 drums, we were informed that within two days of the argument a contract was to be signed for removal of the remaining 155 drums. The defendants claimed that compliance with the June order was halted after discovery of PCB's in the drums. However, the readiness to signa contract for removal of the remaining 155 drums precludes any serious claim that the defendants are unable to comply fully with the June order.
The defendants also challenge the contempt adjudication for failure promptly to comply with the January order for discovery. As indicated above, a response to the discovery requests has been furnished to the State while this appeal was pending, although the adequacy of that response has not been conceded by the State. Even if the response is adequate, the defendants' challenge is not moot since to some ...