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United States v. DiBiase

ELR Citation: 25 ELR 20807
Nos. No. 94-1841, 45 F.3d 541/40 ERC 1118/(1st Cir., 01/25/1995)

The court affirms a district court approval of a consent decree that requires a sewage authority to pay 85 percent of the removal costs the U.S. Environmental Protection Agency (EPA) incurred at a site where the authority had deposited sewage wastes. The district court entered judgment against the site owner, who failed to settle with EPA, for $494,207, the unremunerated portion of the government's removal costs. The court first notes that on appeal, the site owner is only attacking the fairness of the consent decree. The court holds that EPA's rationale for the proposed allocation is plausible and that the district court's endorsement of that rationale is fundamentally fair, because the allocation reflects EPA's determination that both the sewage authority and the site owner are legally responsible to reimburse the public fisc for the emergency removal costs, and the site owner has not appealed the district court order adjudging him liable for damages. Also, the allocation reflects the agency's assessment that the sewage authority, as the generator and transporter of most of the toxic waste dumped at the site, is chiefly responsible for the offending conditions, and the decree implicitly recognizes the site owner's lesser involvement by leaving a relatively small share of the removal costs to be collected from him. In addition, the site owner has cited no Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) case in which a demonstrably liable party has been held entitled to safe passage in a global settlement. The court construes the site owner's argument that the decree is unfair as a surreptitious attempt to relitigate his "innocent landowner" defense, which the districtcourt rejected, and the court has no warrant to entertain a collateral attack on that judgment. The court does not find the EPA allocation substantially disproportionate or manifestly unfair, because the site owner failed to safeguard the site. And the court notes that the site owner's position is at cross-purposes to CERCLA's policy of encouraging settlements and that the site owner did not carry his burden of convincing the court that error inheres in the entry of the decree.

Counsel for Plaintiff
David C. Shilton, Andrea N. Ward
Environmental and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Stephen M. Leonard
Mintz, Levin, Cohn, Ferris, Glovsky & Popeo
One Financial Ctr., Boston MA 02111
(617) 542-6000