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In re In re Acushnet River & New Bedford Harbor: Proceedings re Alleged PCB Pollution

Citation: 19 ELR 21210
No. No. 83-3882-Y, 712 F. Supp. 1019/29 ERC 1730/(D. Mass., 04/27/1989) Settlement generally upheld

The court holds that an environmental group may intervene to challenge a proposed consent decree resolving the liability of one defendant under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for natural resource damages caused by the release of polychlorinated biphenyls in New Bedford Harbor, and the decree is defective in two respects. The court first grants the environmental group's request for permissive intervention. The request was timely. Although the suit was filed three and one-half years before the intervention request, the environmental group believed that the government plaintiffs adequately represented their interests until the group reviewed the proposed settlement. The governments no longer adequately represent the environmental group's intersts. Although both ultimately seek the restoration of New Bedford Harbor, the environmental group seeks a potentially much higher measure of damages than the governments. Further, intervention will not cause undue prejudice or delay to the present parties. Complex legal issues remain unresolved and no other settlements are very far advanced. The possibilities that the environmental group will exercise its right to appeal and that the court of appeals will vacate the settlement are not likely to unduly prejudice the parties. Finally, intervention will provide the court with additional guidance on complex issues by an entity with expertise in the subject.

The court denies the motion of two non-settlors in opposition to the proposed decree. The decree serves CERCLA's remedial purposes and is in line with the provisions of the 1986 CERCLA amendments encouraging settlements. The decree's effect on non-settlors, which are barred from seeking contribution from settlors under CERCLA § 113(f)(2), is merely one factor in evaluating a decree. The court holds that the decree is fair, reasonable, and generally protects the public interest. The settlement provides immediate funds for harbor cleanup without the risks and costs of lengthy litigation. The court is not required to ensure that the governments have struck the best possible deal or that the settlement is precisely in line with the settlor's share of liability. While the settlor may have owned the polluting plant the longest among the defendants, it may deserve a premium for being the first defendant to settle. The non-settlors' argument that they should not be required to suffer for the governments' mistaken settlement strategy by paying the remainder of the settlor's share as well as their own is inconsistent with § 113(f)(2), which provides that the settlor's settlement reduces the potential liability of non-settlors by the amount of the settlement. Turning to the arguments raised by the environmental group in opposition to the decree, the court holds that although the settlement procedures in CERCLA § 122 appear to be applicable only to a natural resource damage settlement that is part of an overall cleanup settlement, these provisions express Congress' general intent regarding settlements and thus cannot be ignored. Congress' failure to include provisions addressing the requirements of a natural resource damage settlement preceeding a cleanup settlement is explained by the fact that Congress anticipated that natural resource damage settlements would follow or be contemporaneous with cleanup settlements. The court holds that the decree does not violate CERCLA § 122(j)(2), which authorizes settlements to include covenants not to sue for natural resource damages that are the subject of a settlement. Section 122(j)(2) does not require settlements with covenants not to sue for natural resource damages to also require the settlor to fully restore the damaged natural resources. The court, however, declines to approve the decree until it is assured that the federal natural resource trustee has agreed to the covenant not to sue. The court holds that the decree violated CERCLA § 122(f)(6)(A) by failing to include a reopener clause authorizing the government to sue for future liability arising out of conditions unknown at the time of the settlement. This case does not present "extraordinary circumstances" under § 122(f)(6)(B) that would allow a reopener clause not to be included.

[Other decisions in this litigation are published at 18 ELR 20543, and 19 ELR 21198 and 21206.]

Counsel are listed at 19 ELR 21198.