ELR Citation: ELR 21113
No(s). 88-0325B (D.R.I. Mar 14, 1996)

The court holds that postconsent-decree circumstances do not justify modifying a consent decree between the U.S. Environmental Protection Agency and the current owner of a contaminated site that settled the current site owner's liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The current site owner asserts that the decree is no longer equitable, because a past site owner was found to be the site's sole contaminator, making the current site owner an innocent landowner. The court first finds that circumstances leading up to the decree demonstrate that the current site owner was, or could have been, fully cognizant of the circumstances about which it complains. The past site owner had, but did not take, the opportunity to litigate its liability and present an innocent landowner defense before entering into the decree. The court next holds that the current site owner's financial obligations under the decree—payment of all real estate and sewer assessment taxes until the site is remediated—do not impose unfair or particularly onerous hardships on the current site owner, even if they are more costly than originally anticipated. The court holds that the fact that the costs of remaining a party to the decree are slight mitigates the uncertainty of the decree's longevity. Finally, the court holds that the decree's public benefits and the government's interest in continued CERCLA enforcement favor upholding the decree.

[Prior decisions in this litigation are published at 20 ELR 20349 and 21462.]

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

Counsel for Defendants
Deming E. Sherman
Edwards & Angell
2700 Hospital Trust Tower, Providence RI 02903
(401) 274-9200