their interpretation of Rohm and Haas precludes them from obtaining contribution for the oversight costs in the third-party action in this case, and that this would render the decree substantively unfair. As the PRPs note, this "unfairness" results from their expectation -- at the time of signing the decree -- that the costs would be recoverable from the third-party defendants.
While the court appreciates that Rohm and Haas adds yet another element of uncertainty to the resolution of the third-party contribution action, this uncertainty does not render the decree substantively unfair. The courts that have tested CERCLA consent decrees for substantive fairness have focused upon whether the method for allocating costs among settling PRPs was irrational. Cannons, 899 F.2d at 87-88 (collecting cases); United States v. Montrose Chem. Corp., 793 F. Supp. 237, 241 (C.D. Cal. 1992). Cf. United States v. BASF-Inmont Corp., 819 F. Supp. 601, 608-09 (E.D. Mich. 1993) (focusing only on procedural fairness). There is no suggestion that the allocation in this settlement was arbitrary in light of Rohm and Haas. While the court acknowledges that third-party defendants may attempt to assert Rohm and Haas as a defense to the PRPs' recovery of certain costs -- and it is by no means certain that Rohm and Haas permits such a result -- this is precisely the type of uncertainty upon which settling parties place a premium when hammering out an agreement at arms-length. The court finds that the agreement is not substantively unfair in light of Rohm and Haas.
All three non-party commenting groups argue that the decree is unfair from their perspectives because the settlement will saddle non-settling persons with disproportionate liability. They point out that the government's original claim of $ 1,794,700 for past response costs was reduced to the sum of $ 1,209,250 in the consent decree. The commenters are rightly concerned that the government might someday assert claims against them for the residue.
Although this scenario may seem harsh and unfair, any unfairness is inherent in the statutory scheme and is not a mere byproduct of the consent decree. "Congress explicitly created a statutory framework that left nonsettlors at risk of bearing a disproportionate amount of liability." Cannons, 899 F.2d at 91. CERCLA permits the government to pursue nonsettlors for the amount of costs not recovered through the settlement, 42 U.S.C. § 9613(f)(2), and settling PRPs are immune from contribution claims from nonsettling parties. 42 U.S.C. § 9613(f)(2).
Even if CERCLA did not expressly contemplate this result, however, the court would be unable to find that this result was substantively unfair. The government will recover approximately 66% of its claimed past response costs from only 10 PRPs. In the event that the government sues nonsettlors for the remainder, CERCLA provides that the potential liability of nonsettling parties is reduced dollar-for-dollar by the amount of the settlement. 42 U.S.C § 9613(f)(2). Also, when resolving the PRPs' claims for contribution against the third-party defendants, this court will "allocate response costs among liable parties using such equitable factors as the court determines are appropriate." Id. at § 9613(f)(1). Although the potential for disproportionate liability remains for the third-party defendants, this result would be neither unfair nor proscribed by CERCLA.
One group of commenters argues that the decree has the effect of bestowing contribution protection upon the PRPs for future costs whether or not the PRPs pay these costs to the government. These commenters conclude that should the PRPs fail to pay future costs, and should the government pursue third-party defendants for those unpaid costs, the third-party defendants could not obtain contribution from the defaulting PRPs.
This court disagrees with the commenters' construction of the scope of contribution protection. Section IX.B. of the decree provides that,
"upon receipt by EPA of the payments required by Section V.A.(1) [past response costs] and, if required, Section V.A.(2) [potential PaDER reimbursement], Settling Defendants and Related Persons are entitled to such protection from contribution actions or claims as is provided by CERCLA Section 113(f)(2), 42 U.S.C. § 9613(f)(2), for the matters set forth in Section VII.A.