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United States v. Wallace

ELR Citation: 26 ELR 20174
Nos. No. 3:93-CV-0838-P, 893 F. Supp. 627/(N.D. Tex., 07/17/1995)

The court enters a consent decree that settles the liability of 73 potentially responsible parties to the United States and the state of Texas for response costs incurred at a Superfund site. The court first holds that the decree is procedurally fair, because nonsettling defendants were afforded an ample opportunity to participate in the negotiations that produced the decree, and experienced legal counsel representing each defendant conducted arm's-length settlement negotiations in good faith. The court also holds that the decree is substantively fair. The United States reasonably relied on the volumetric formula for apportioning liability among defendants. The decree reasonably includes the settlement of any alleged liability of the Small Business Administration (SBA) with the settling parties, because evidence in the record supports the U.S. assertion that the SBA, although it acted to protect its security interest, never participated in the management of the site. The court distinguishes United States v. Moore, 18 ELR 21274 (E.D. Va. 1988), on which the nonsettling defendants rely in their argument that more exacting scrutiny of the consent decree is appropriate because of alleged "sweetheart deals" the United States and Texas made with the settling federal and state agencies. The U.S. Environmental Protection Agency and the settling defendants have agreed on a formula for apportioning harm that is rational and plausible in light of the known facts, and the settling federal and state agencies are entitled to contribution protection. The court next holds that the consent decree is reasonable because the remedy has been completely and fully implemented, no party objects to a party's bargaining position, and the potential risk to the public that it would incur exorbitant legal costs in litigating the issues the decree resolves and the risk of loss of each settling defendants' contributions greatly outweighs the risk of loss if nonsettling defendants prevail at trial. Finally, the court holds that the decree is consistent with the goals of the Comprehensive Environmental Response, Compensation, and Liability Act.

Counsel for Plaintiffs
Myles E. Flint
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Thomas E. Shaw
Bird & Reneker
1100 Premier Pl., 5910 N. Central Expwy, Dallas TX 75206
(214) 373-7070