ELR Citation: ELR 20127
No(s). 85-4386 (D.N.J. Sep 29, 1989)

The court holds that a proposed de minimis consent decree under §122 (g) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) concerning claims by the United States and New Jersey for response costs at the Lipari landfill is fair and reasonable. The company that contributed most of the waste to the Lipari landfill, the number one ranked site on CERCLA's National Priorities List, opposed entry of the decree on grounds that the settling parties' settlement payments do not accurately reflect their proportionate share of liability. The decree requires 10 settling parties to pay about $3 million of an estimated $65 million cleanup in return for a release from liability and protection against nonsettling parties' contribution claims. The decree contains two reopener provisions that allow nonsettling defendants to seek contribution, either if future information reveals that a settling de minimis party disposed of more than one percent of the waste, or if total response costs exceed $94 million. The court observes that the settlement need not reflect precisely the settlors' volumetric share of the waste dumped at Lipari; rather it must merely be a reasonable compromise in light of the factual record. Although the settlement could be higher, could contain more protective reopeners, and may be disproportionate to the settlors' volumetric share and prejudicial to the nonsettling defendants, the court holds that it is a reasonable and fair compromise and plausibly reflects the settlors' potential liability. First, the Environmental Protection Agency's decision to use a one percent share for according a party de minimis status was not arbitrary and capricious. Second, Congress intended andcourts have held that CERCLA requires a money settlement to be accepted and entered as a consent decree when the settlement is reasonably related to a plausible estimate of the settling parties' volumetric share. Any unfairness to a nonsettlor is a by-product of the congressional scheme. The settlement is fair, adequate, and reasonable because it will greatly curb the costs of a drawn-out and expensive trial; the government faces substantial risks in litigating the liability of the de minimis settlors due to the scanty documentary record and questionable reliability of the witnesses; and the decree is the three-year product of adversarial bargaining. Moreover, the settlement is in the public interest as defined by CERCLA. Its approval will bring more than $2.5 million into the Superfund, provide $500,000 to New Jersey for protection of public health and the environment, impose the costs of response activities on the most responsible parties, and mitigate the impact of joint and several liability upon de minimis contributors. Additionally, the court declines to compel the United States to treat a potentially responsible party as a de minimis party, or to settle with a particular defendant, and refuses to consider whether any de minimis settlor's waste was disproportionately toxic as compared with other waste at the site.

[A previous decision in this litigation is published at 18 ELR 20221.]

Counsel for Plaintiffs-Intervenors
Joseph Hurley, Paul Chassy
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 7611, Ben Franklin Station, Washington DC 20044
(202) 633-2045

Kenneth W. Elwell, Deputy Attorney General
Richard J. Hughes Justice Complex, CN 112, Trenton NJ 08625
(609) 292-4925

Counsel for Defendants
Julia Lambeth Phillips
E.I. du Pont de Nemours & Co.
1007 Market St., Wilmington DE 19898
(302) 774-1000

Ann C. Hurley
Skadden, Arps, Slate, Meagher & Flom
1440 New York Ave. NW, Washington DC 20005-2107
(202) 371-7000

Bradford F. Whitman, Wendy Relation
Dechert, Price & Rhoads
3400 Centre Sq. W., 1500 Market St., Philadelphia PA 19102
(215) 981-2000