ELR Citation: ELR 20925
No(s). s. LR-C-80-109 et al (E.D. Ark. Feb 4, 1991)

The court holds that a consent decree resolving claims for cleanup costs and natural resource damages under the Resource Conservation and Recovery Act and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is fair, reasonable, and consistent with the remedial objectives of CERCLA. The consent decree resolves claims in connection with the Vertac Chemical Corp. Superfund site in Arkansas and provides for payment of $1.84 million in cleanup costs, $126,000 in natural resource damages, and 33 percent of all of defendants' future pre-tax profits over the next 12 years. The settling defendants are the successor to Vertac's pesticide manufacturing business, the successor's parent corporations, and their officers and directors. The court first holds that CERCLA §122 does not prohibit cash-out settlements with non de minimis parties where no remedy has been selected or completed. Further, §122 does not require the settlement to contain a reopener provision. CERCLA is a remedial statute, and the government must be granted some discretion in fashioning settlements that are fair and reasonable under the circumstances. The court next holds that the settlement is the result of good faith, arms' length negotiations. The decree imposes stringent limitations on the defendants to ensure that they will be able to fully meet their financial obligations under the decree. Finally, the court holds that the settlement is fair, reasonable, and consistent with CERCLA, even though it does not hold the defendants fully liable as successors to Vertac. The settlement represents a recovery of the maximum possible amount of money obtainable from the defendants given their net worth and their limited ability to pay.

[Prior decisions in this litigation are published at 10 ELR 20709, 15 ELR 20002.]

Counsel for Plaintiff
A. Douglas Chavis, Ass't U.S. Attorney
P.O. Box 1229, Little Rock AR 72203-1229
(501) 378-5342
Gary S. Guzy
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Robert R. Ross
Arnold, Grobmyer & Haley
One Union National Plaza, Eighth Fl., P.O. Box 70, Little Rock AR 72203
(501) 376-1171