ELR Citation: ELR 20199
No(s). s. 93-1691, -2372 (1st Cir. Sep 13, 1994)

The court affirms a district court's approval of two Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) consent decrees with generators and transporters and certain owners and operators of a hazardous waste site in Tyngsboro, Massachusetts. Addressing the reasonableness of the consent decrees, the court first upholds the efficacy of the proposed cleanup. The court holds that the nonsettling potentially responsible parties' (PRPs') challenge to the cleanups' efficacy is not entitled to substantive consideration, because they presented it to the court carelessly. The court also holds that the district court acted within its discretion in concluding that the consent decrees incorporated a suitable set of remedies. The court next holds that the district court did not err in declining to hold an evidentiary hearing on the efficacy issue. Requiring hearings to review the reasonableness of CERCLA consent decrees as a matter of course would frustrate the statutory objective of promoting expeditious settlement. Moreover, the nonsettling PRPs have not demonstrated a particularized need for an evidentiary hearing.

The court next holds that the allocation method embodied in consent decree concerning generator and transporter PRPs does not undermine CERCLA's goal of accountability even though it fails to specify each individual generator's and transporter's degree of culpability. The U.S. Environmental Protection Agency's practice of negotiating with a representative group of PRPs and then permitting the group members to divide the burden of the settlement among themselves is a practical and reasonable process for achieving settlements and is faithful to CERCLA's goals. Moreover, because the district court found that the nonsettling PRPs' records were wholly inadequate, there is an especially compelling reason for accepting a classwide allocation here. A lack of reliable records renders it impossible, as a practical matter, for a court to make reasoned findings concerning the relative contributions of particular generators or transporters to the aggregate harm. The court further holds that the generator/transporter consent decree did not compromise CERCLA's goal of accountability by setting too modest a settlement amount. That the nonsettling PRPs' aggregate net worth allegedly amounts to only a small fraction of the difference between the maximum potential cleanup costs and the total amount the settling PRPs paid is irrelevant, because where compensatory damages are concerned, a liable party's ability to pay should not influence the assessment amount. The court notes that the district court found that the generators and transporters collectively were responsible for 50 percent of the environmental damage, and under the terms of the settlement, the payment required of the generators and transporters as a group represents more than one-half of the highest estimate of the aggregate cleanup cost. Thus, the settlement amount is adequate and favorable to the government.

Addressing the decrees' fairness, the court next holds that under the circumstances of this case, substantive fairness did not require a more detailed explanation of either the allocation of responsibility or the allocation method. The district court permissibly confined its inquiry to the substantive fairness of the aggregate class contribution. Also, based on the incomplete record in this case, the district court's division of responsibility between the owner/operators and the generators/transporters was fair. And the district court did not err in ruling that although direct evidence of substantive fairness was lacking, substantive fairness flowed as a natural consequence from procedural fairness.

Finally, the court upholds the scope of the consent decrees. Although potential claims for natural resource damages were never pleaded, these claims fall within the decrees' general scope. Also, it was within the district court's discretion to permit the consent decrees to resolve claims that the parties were precluded from litigating under the district court's own case management orders.

[Related decisions are published at 16 ELR 20495, 17 ELR 20085, 17 ELR 21152, and 18 ELR 20886.]

Counsel for Plaintiffs
David C. Shilton, Elizabeth A. Peterson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Richard E. Bachman
Hale, Sanderson, Byrnes & Morton
One Center Plaza, Boston MA 02108
(617) 227-2070

Before SELYA and CYR, Circuit Judges, and ZOBEL,^* District Judge.