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UNITED STATES v. ATLAS MINERALS & CHEMS.

March 1, 1994

UNITED STATES OF AMERICA
v.
ATLAS MINERALS AND CHEMICALS, INC., et al. v. R. EMORY MABRY, et al.


CAHN


The opinion of the court was delivered by: BY THE COURT; EDWARD N. CAHN

CAHN, C.J.

 This is a cost recovery action brought by the United States (the "government" or "United States") pursuant to the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601 et seq. The government has identified and sued ten potentially responsible parties ("PRPs" or "defendants") for costs allegedly incurred in cleaning up a landfill. The PRPs and the government have reached a settlement of this dispute and have embodied their settlement in a consent decree. Currently before the court is the United States' Motion to Enter the Consent Decree. For the reasons set forth below, the Motion is granted.

 I. FACTUAL AND PROCEDURAL HISTORY

 A. Site History

 This case arises out of contamination of the Dorney Road Landfill ("the site") in Upper Macungie Township, Berks County, Pennsylvania. Prior to its use as a landfill, the site was operated as an open-pit iron ore mine. From about 1952 through 1978, the pit and perimeter area were used as a dump for a variety of municipal and industrial wastes. The site was abandoned in 1978 and was never properly capped or closed.

 In 1980, the Environmental Protection Agency ("EPA") conducted ground water and soil leachate tests at the site and determined that various organic and inorganic contaminants were present. The EPA, in conjunction with the Pennsylvania Department of Environmental Resources ("PaDER"), continued to monitor the site through 1986.

 Having determined that the site conditions presented a substantial threat to human health, EPA initiated a Superfund-financed emergency removal action at the site to address immediate and pressing environmental hazards. This removal action involved regrading of the site and the construction of on-site ponds to collect surface water run-off. From Fall, 1987, through Spring, 1998, EPA and PaDER conducted a Remedial Investigation and Feasibility Study ("RI/FS") at the site to evaluate long-term remedial alternatives. The EPA determined that long-term response was best addressed by dividing the site into two "Operable Units" -- one which addressed landfill waste and soil contamination ("OU1") and one which addressed ground water concerns ("OU2"). In Fall, 1988, EPA issued a Record of Decision for each of the Operable Units ("ROD-OU1" and "ROD-OU2"). The RODs address in detail the hazardous substances present at the site and the corresponding threats to human health and the environment. The RODs also evaluate the potential effectiveness of various long-term response alternatives and select what the EPA has determined to be the best permanent remedy for the site.

 EPA's response to the site has been twofold. First, as noted above, the EPA performed an initial emergency removal action at the site. Second, the EPA issued four unilateral administrative orders to the ten PRPs pursuant to § 106 of CERCLA, 42 U.S.C. § 9606 (the "unilateral orders"). The unilateral orders require the PRPs to, among other things, implement at their own cost the permanent CERCLA remedies selected by EPA in the two RODs. The government states that the PRPs are currently in compliance with the § 106 orders.

 B. History of this Litigation

 In August, 1991, the United States filed a CERCLA cost recovery action against the PRPs pursuant to 42 U.S.C. § 9607 and requested a declaratory judgment for future costs pursuant to 42 U.S.C. § 9613(g). The defendants in turn filed third-party complaints for contribution against approximately 60 third-party defendants. The third-party contribution action, which does not directly bear on the issues presented by the instant motion, is currently being tried before the court.

 The United States lodged the consent decree with the court on April 13, 1993, and, pursuant to 42 U.S.C. § 9622(d)(2) and 28 C.F.R. § 50.7, the decree was subject to a period of public comment that ended May 24, 1993. The Department of Justice ("DoJ") received comments from three groups of third-party defendants ("commenters"). After considering the comments and responding to them, EPA determined that the commenters did not raise objections to the decree sufficient to block its entry. The United States filed the instant Motion to Enter the Consent Decree on August 3, 1993. The commenters have filed their objections to entry of the decree.

 On August 12, 1993, the United States Court of Appeals for the Third Circuit issued its opinion in United States v. Rohm and Haas Co., 2 F.3d 1265, reh'g denied and reh'g en banc denied, 1993 U.S. App. LEXIS 27769 (3d Cir. Oct. 22, 1993). In Rohm and Haas, the Court of Appeals held that certain costs of overseeing private response actions are not recoverable as a cost of removal under CERCLA § 107. By an Order entered on September 23, 1993, the court granted the PRPs' request for leave to brief the court on whether, in light of Rohm and Haas, this court should approve and enter the decree. On October 8, 1993, the PRPs filed a Motion to Modify or Withdraw from the Proposed Consent Decree, arguing that the Rohm and Haas decision justifies modification of the decree, or alternatively denial of the motion to enter the decree, to reflect the government's alleged lack of authority under CERCLA to recover certain oversight costs. The United States filed a responsive brief on October 22, 1993, and this court held a hearing on January 10, 1994, in which the United States, the PRPs, and the commenters had an opportunity to be heard on the cross-motions and objections.

 II. LEGAL FRAMEWORK

 a. Statutory Authority in CERCLA

 Section 104 of CERCLA authorizes the President, on behalf of the United States, to select and implement responses to releases and threatened releases of hazardous substances into the environment. 42 U.S.C. §§ 9604(a), 9604(b)(4). Although the government may fashion a response in a number of ways, CERCLA provides two general response options. First, the United States may formulate and implement a response paid for out of the "Superfund," a trust funded by Congressional appropriations for responding to environmental hazardous wastes. See 42 U.S.C. §§ 9604, 9611. In a Superfund-financed response, the United States may sue PRPs to recover the incurred costs of response and thereby refresh the Superfund. 42 U.S.C. § 9607. Second, the EPA may fashion a response but order PRPs to implement it at the PRPs' cost. 42 U.S.C. § 9606. In cases where the EPA orders private response, the EPA may nonetheless recoup funds spent in evaluating the site and fashioning a response. 42 U.S.C. § 9606.

 The EPA's response in this case was a hybrid. The EPA addressed immediate concerns through an initial removal action, for which the United States now seeks reimbursement. The permanent remedy selected for the site is embodied in the four unilateral orders, which direct the PRPs to clean up the site at their cost, subject to EPA oversight. The orders are self-executing and the court is empowered to fine the PRPs for failure to comply with them. 42 U.S.C. § 9606.

 In addition to providing the government with a civil cause of action for recovery of incurred response costs, CERCLA also authorizes the President to enter into consent decrees to facilitate response. Section 122 of CERCLA provides:

 
The President, in his discretion, may enter into an agreement with any person . . . to perform any response action . . . if the President determines that such action will be done properly by such person. Whenever practicable and in the public interest, as determined by the President, the President shall act to facilitate agreements under this section that are in the public interest and consistent with the National Contingency Plan in order to expedite effective remedial actions and minimize litigation.

 42 U.S.C. § 9622(a). In order to encourage settlement and the expeditious cleanup of Superfund sites, Congress has authorized the President, in his discretion, to give as consideration a covenant not to sue PRPs who settle with the United States. 42 U.S.C. § 9622(f). Such a covenant is included in the consent decree in this case. Moreover, CERCLA provides settling PRPs with immunity from contribution claims arising out the site. However, the government has reserved its right to resume litigation in the event that the PRPs default on their obligations under the decree.

 b. Legal Standard for Consent Decrees

 Although entry of a consent decree is committed to the informed discretion of the trial court, strong policy considerations favor entry. United States v. Akzo Coatings of Am., 949 F.2d 1409, 1423-24 (6th Cir. 1991); United States v. Cannons Engineering Corp, 899 F.2d 79, 84 (1st Cir. 1990); United States v. Alcan Aluminum, Inc., No. 88-4970, 1993 U.S. Dist. LEXIS 9043, at *11-13 (E.D. Pa. June 24, 1993) (Troutman, J.); United States v. Nicolet, Inc., No. 85-3060, 1989 U.S. Dist. LEXIS 9576, at *8 (E.D. Pa. Aug. 15, 1989) (Broderick, J.). Resolution of litigation by voluntary settlement is favored because the parties and the public avoid the time and expense of taking the case to trial. Pennwalt Corp. v. Plough, Inc., 676 F.2d 77, 80 (3d Cir. 1982). This policy is particularly strong where the government has brought suit to obtain compliance with the law and determines that settlement of dispute by consent decree is in the public interest. Cannons, 899 F.2d at 84.

 Accordingly, this court's review of the decree is highly deferential. "The balance of the competing interests must initially be left to the discretion of the Attorney General when the United States brings the action, especially when the Justice Department negotiated the consent decree on behalf of an agency specially expert in the field." Alcan, 1993 U.S. Dist. LEXIS 9043 at *11-12 (citing Akzo, 949 F.2d at 1436). This court cannot second-guess the wisdom of the parties' decisions and should preserve their bargained-for positions whenever possible. Nicolet, 1989 U.S. Dist. LEXIS 9576, at *6. Therefore, the court cannot modify the proposed decree for the parties -- it can only approve or reject it. Id. at *8. The ultimate determination for the reviewing court is whether the decree is "reasonable, fair and consistent with the purposes that CERCLA is intended to serve." H.R. Rep. No. 253, Part 3, 99th Cong., 1st Sess. 19 (1985), reprinted in, 1986 U.S.C.C.A.N. 3038, 3042. Akzo, 949 F.2d at 1424; Cannons, 899 F.2d at 85; Alcan, 1993 U.S. Dist. LEXIS 9043, at *12.

 Although the court's review is deferential, it cannot merely "rubber stamp" the decree. A consent decree is more than a contract between the parties -- it is a judicial act. United States v. Swift & Co., 286 U.S. 106, 115, 76 L. Ed. 999, 52 S. Ct. 460 (1932); Nicolet, 1989 U.S. Dist. LEXIS 9576, *7-8. Accordingly, before the court places its imprimatur on the agreement of the parties, it must examine the agreement for legality. League of United Latin Am. Citizens v. Clements, 999 F.2d 831, 845 (5th Cir. 1993), cert. denied, 127 L. Ed. 2d 74, 114 S. Ct. 878 (1994); Nicolet, 1989 U.S. Dist. LEXIS 9576, at *7-8. The Court of Appeals for the Fifth Circuit has described this inquiry:

 
Because the consent decree does not merely validate a compromise but, by virtue of its injunctive provisions, reaches into the future and has continuing effect, its terms require more careful scrutiny. Even when it affects only the parties, the court should, therefore, examine it carefully to ascertain not only that it is a fair settlement but also that it does not put the court's sanction on and power behind a decree that violates Constitution, statute, or jurisprudence. . . . If the ...

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