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United States v. Kramer

Citation: 29 ELR 20294
No. CIV. A. 89-4340 JBS, 19 F. Supp. 2d 273/47 ERC 1645/(D.N.J., 09/03/1998)

The court approves federal and state consent decrees that the U.S. Department of Justice, the state of New Jersey, and hundreds of settling parties entered into in connection with Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) response costs incurred at the Helen Kramer Landfill site in New Jersey. The court first holds that contrary to a nonsettling party's objections, the settlement process was not impermissibly secretive. The nonsettling party had the right to inspect and review the underlying data from all participants and to receive and propose corrections to the draft allocation reports. The court next holds that the nonsettling party's allocated share is not too high. It suffices that the allocation process considered all known facts, including the nonsettling party's proposed facts, weighed them, entertained the nonsettling party's objections, and gave the nonsettling party a plausible explanation for its proposed settlement allocation. The court then holds that the settling parties need not include in the consent decrees their individual monetary settlement shares, their bases of settlement allocation, or their individual proportions of site liability as determined by the settlement process. It is sufficient that the terms, rationales, and bases of the consent decrees have been disclosed on a group wide basis.

The court also holds that the consent decrees are procedurally and substantively fair. The court further holds that the consent decrees are fair to nonsettlors. Despite a nonsettlor's objection that too great of a burden of the orphan share will be imposed on the nonsettling parties, every nonsettlor is not a direct defendant of the CERCLA § 107(a) claims and, therefore, is not subject to joint liability at the site. Further, there is little or no likelihood that the present third-party defendants who are nonsettlors can be joined as direct CERCLA defendants. The court then holds that the consent decrees are reasonable. The technical adequacy of the remediation under the settlement is not in question, the compensation to the public is satisfactory, and the risks and delays inherent in continuing the litigation have been reasonably appreciated by the settling parties.

The court next holds that the consent decrees are consistent with the public interests of CERCLA and the New Jersey Spill Compensation and Control Act. The consent decrees replenish the CERCLA Superfund and the state spill fund. The settlements have also well served CERCLA's goal of reducing litigation and transaction costs. In addition, the consent decree's public benefits of containment, remediation, and restoration of a healthy environment are faithful to CERCLA's mandates.

[Prior decisions in this litigation are published at 21 ELR 20879, 26 ELR 20856, and 27 ELR 20878.]

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

Counsel for Defendant
William H. Hyatt Jr.
Pitney, Hardin, Kipp & Szuch
Park Avenue at Morris County
P.O. Box 1945, Morristown NJ 07962
(201) 966-6300