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Arizona v. Nucor Corp.

ELR Citation: 26 ELR 20061
Nos. No. 93-16966, 66 F.3d 213/41 ERC 1861/(9th Cir., 09/15/1995)

The court affirms a district court's approval of a settlement agreement between the state of Arizona and a potentially responsible party (PRP) at the West Central Phoenix State Superfund Study Area. The agreement resolves the PRP's Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) liability for groundwater contamination in the area. The court first holds that the district court acted within its discretion in holding that the state had sufficient information regarding the extent of the contamination and cost of cleanup to enter into the settlement agreement. The state and its environmental consultants conducted over 50 preliminary assessments and site investigations; collected an aerial photographic history of the study area; and solicited and received detailed information regarding property ownership, manufacturing processes, and chemical usage and/or disposal practices for hundreds of facilities in the area. Moreover, the state's estimate of the total cost of cleanup was conservative. The court also holds that the indexed sales method the state used to estimate the settlor's proportionate liability was reasonable. While an examination of the relative waste disposal methods and volumetric data of waste production might provide a more accurate measure of the settlor's share of liability, such records were not kept. Moreover, the state's estimate of the settlor's liability might be conservative. The court rejects plaintiff-intervenor's argument that the settlement violates CERCLA §122(e)(3)(A) by failing to include a formal remedial investigation and feasibility study (RI/FS). CERCLA does not require a formal RI/FS under the circumstances present in this case. Section 122 has no bearing on settlements between states and PRPs. Section 122(e)(3)(A) allows the U.S. Environmental Protection Agency (EPA) to issue a nonbinding preliminary allocation of responsibility to expedite settlements and remedial action. Even if §122(e)(3)(A) binds the state, the settlement does not attempt to provide a nonbinding preliminary allocation of responsibility, allocating percentages of the total cost of response among PRPs. Furthermore, §122(a)-(f) refer only to actual remedial actions, and this case is not a remedial action. The court declines to review the issue of whether the settlement agreement violates §122(f)(6)(A) by failing to include reopener provisions, because plaintiff-intervenor waived the issue by failing to raise it sufficiently for the district court to rule on it. The court, however, notes that §122(f)(6)(A) is not applicable to state settlements in which EPA is not involved.

Counsel for Plaintiffs
Kevin R. Keating, Deputy Attorney General
Attorney General's Office
1275 W. Washington St., Phoenix AZ 85007
(602) 542-4266

Counsel for Defendant
Rolf von Oppenfeld
Kane, Jorden & von Oppenfeld
4201 N. 24th St., Ste. 105, Phoenix AZ 85016
(602) 955-9200

Before Gibson,* Hug and Ferguson, JJ.