ELR Citation: ELR 20331
No(s). 94-50390-LAC (N.D. Fla. Aug 18, 1995)

The court holds that a proposed consent decree requiring potentially responsible parties (PRPs), including individual and small businesses, to repay the government's past response costs according to their ability to pay and granting broad contribution protection is reasonable, fair, and consistent with the Comprehensive Environmental Response, Compensation, and Liability Act's (CERCLA's) goals. Proposed intervenors, who are nonsettling PRPs, objected to the decree, claiming it is unfair and unreasonable. The court first holds that the decree is fair. The negotiations leading to the decree were procedurally fair, because the government attempted to accommodate the proposed intervenors' interests and made reasonable efforts to collect and analyze financial data before agreeing to specific payment terms. The decree is also substantively fair. The settlement may be more advantageous to the settling PRPs than was the case for the proposed intervenors, but this is due to significant differences between the two groups of PRPs. The settlors in this case are individuals and small businesses, all of which have little to contribute toward cleaning up the site. Financial health, or "ability to pay," is an acceptable factor in apportioning liability. The court notes that the government's grant of broad contribution protection to the settlors is sensible, given the premise that the settlors are being asked to pay all they can afford. Moreover, without such protection, the PRPs' incentive to settle with the government diminishes as they face being driven into the ground by contribution actions, regardless of whether they settle with the government. The court next upholds the government's settlement amounts for three settling PRPs, finding the amounts reasonable and fair under the circumstances. The court holds that the decree's language that calls for the proposed intervenors to receive only 20 percent of the total settlement, and the United States the remaining 80 percent, is permissible. The government may impose such settlements, and CERCLA §113(f)(3)(C) gives the government's claims statutory priority over the proposed intervenors' claim on these settlors' funds. The court next holds that the decree is reasonable. The settlement assists the government in cleaning up the environment at this site and elsewhere, and the government obtained the best deal it could get under the circumstances. The court also holds that the decree is consistent with CERCLA's goals, because the government is holding the settlors accountable for their contribution to the contamination. The settlors are not getting a "good deal," but rather the government is extracting from them what it can. Finally, the court adopts the proposed consent decree.

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

Counsel for Defendants
Thomas R. Lotterman, Bonnie S. Kartzman
Swidler & Berlin
3000 K St. NW, Ste. 300, Washington DC 20007
(202) 424-7500