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United States v. Union Elec. Co.

ELR Citation: 27 ELR 20190
Nos. 1:92CV00078 GFG, 1:92CV00088 GFG, 934 F. Supp. 324/(E.D. Mo., 08/14/1996) on remand

The court holds that a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) consent decree between potentially responsible parties (PRPs) and the U.S. Environmental Protection Agency (EPA) is procedurally and substantively fair, and consistent with CERCLA's objectives. The consent decree resulted from negotiations between EPA and parties responsible for contributing polychlorinated biphenyls to the site of a Missouri electrical equipment sale and repair shop. PRPs formed a committee to represent their interests in the negotiations. Certain PRPs and their trade organization intervened, challenging the consent decree's fairness. The court first holds that the agreement is procedurally fair. The intervenors had ample opportunity to participate in the negotiations, the committee membership fees were reasonable, and the intervenors remained informed about the progress of the negotiations. There was also nothing inherently unfair about EPA's choosing to negotiate and settle with the committee, instead of with each individual PRP. The court next holds that the agreement is substantively fair. The allocation formula is not arbitrary and capricious and the fact that liability is based on volume rather than toxicity is not unfair. Also, although the transformers that the intervenors sold were useful and not for purposes of disposal, that sale is not excluded from CERCLA liability. If the buyer purchases the product to scrap it, even though it may still be useful, then the seller may nevertheless be liable under CERCLA. The court holds that the consent decree is reasonable and serves the public interest. The court also holds that the consent decree is consistent with CERCLA's objectives, since it provides for prompt, complete, and efficient cleanup of the contaminated site.

[A prior decision in this litigation is published at 26 ELR 20188.]

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

Counsel for Defendants
John F. Cowling
Armstrong & Teasdale
One Metropolitan Sq., Ste. 2600, St. Louis MO 63102
(314) 621-5070