Massachusetts v. Pace

No. 83-3883-G (D. Mass. March 22, 1984)

The Commonwealth of Massachusetts signs a consent agreement to recover over $1.9 million expended for cleanup of the Silresim Chemical Corp. site in Lowell. In the agreement, 231 corporations agree to pay sums ranging from $16.41 to $287,190.31 in return for release from civil liability for cleanup of the site. The agreement also attempts to protect the defendants from suits for contribution from non-settling joint tortfeasors, and allows defendants credit for sums paid to third parties in independent suits to recover cleanup costs. The parties do not acknowledge liability for disposal of materials at the site. An appendix listing settling parties and amounts is available from ELR (11 pp. $2.00, ELR Order No. C-1321a).

In a separate but identical agreement, the state settles with four additional corporate defendants. (Full text available from ELR, 9 pp. $1.75, ELR Order No. C-1321b).

In a similar agreement, the state settles with the Departments of the Navy and Air Force. The agreement expressly preserves the rights of recovery of the United States. (Full text available from ELR, 7 pp. $1.50, ELR Order No. C-1321c).

Counsel for Plaintiff
Lee P. Breckenridge, Ass't Attorney General
Environmental Protection Division
One Ashburton Pl., Boston MA 02108
(617) 727-2265

Counsel for Defendants
John R. Cromer
Hammond, Cromer & Jackson
431 E. Hanna Ave., Indianapolis IN 46227
(317) 786-0487

James I. Wyer, General Counsel
American Cyanimide Co., Wayne NJ 07470
(201) 831-2000

Edward Arthur Schwartz, General Counsel
Digital Equipment Corp., 111 Powdermill Rd., Maynard MA 01754
(617) 493-5500

Richard F. Delima
Polaroid Corp., Technology Sq., Cambridge MA 02139
(617) 577-2804

Charles Henry Resnick, General Counsel
Raytheon Co., 141 Spring St., Lexington MA 02173
(617) 862-6600

James K. Parker, General Counsel
Columbia Broadcasting System, 51 W. 52d St., New York NY 10019
(212) 975-4321

[14 ELR 20429]

Agreement for Judgment

The above action has been brought by the Plaintiff to recover certain surface clean-up costs which it expended with respect to the premises of the Silresim Chemical Corporation located on Tanner Street in Lowell, Massachusetts (hereinafter the "Silresim Site"). This Agreement for Judgment has been entered into by the Plaintiff and each defendant company listed on Appendix A hereto (hereinafter referred to as a "Company" or collectively as the "Companies") in order to avoid the expenses and uncertainties of litigating the above action to conclusion.

II.

Within 30 days after the entry of this Agreement for Judgment each of the Companies agrees that it shall pay to the Commonwealth of Massachusetts (hereinafter the "Commonwealth") the sum listed opposite its name on Appendix A hereto.

III.

To avoid further litigation between the parties hereto and the expense that would be incurred in connection with such further litigation, and to set to rest forever the differences existing among them which are the subject of the above entitled action, without impairing or affecting the claims of the Commonwealth against any other person or entity in connection with the Silresim Site, the Commonwealth does hereby release, covenant not to sue, enforce judgment or take any civil judicial or administrative action under Federal or State statutory or common law or municipal law against the Companies, their respective divisions which are not separately incorporated, or their respective directors, officers, employees, agents, successors and assigns, with respect to: (1) any and all costs, including administrative costs, incurred or accrued by the Commonwealth in connection with the Silresim Site through and including the date of entry of this Agreement for Judgment, and (2) any and all costs or damages in connection with materials removed from the Silresim Site by or under the direction of the Commonwealth. The foregoing matters are referred to hereafter as "Covered Matters."

The parties contemplate and intend that the Commonwealth will assert claims for cost recovery or other relief against entities which are not parties to this Agreement for Judgment to enable the Commonwealth to recover the remainder of the costs incurred or accrued by the Commonwealth in connection with the Silresim Site.

IV.

This Agreement for Judgment was negotiated in good faith by the parties, and the Commonwealth believes that the payment by the Companies pursuant to this Agreement for Judgment represents a fair and equitable apportionment of the respective responsibilities of each of the Companies for Covered Matters. In addition, the Commonwealth believes that the combined payments of the Companies represent a fair and equitable apportionment of the Companies' responsibilities for Covered Matters.

Accordingly, the Commonwealth intends and believes that the Companies should not be liable with respect to Covered Matters for any payment in excess of the amount paid pursuant to this Agreement for Judgment and agrees thatthis Agreement for Judgment will be dispositive of the respective duties and liabilities of each of the Companies with respect to any other person or entity against whom a claim is made by the Commonwealth, or a judgment is rendered in favor of the Commonwealth for Covered Matters.

It is the express understanding and intent of the parties that the provisions of Massachusetts General Laws, Chapter 231B, Section 4 and the principles embodied therein shall govern this Agreement for Judgment and protect the Companies from being required to pay any amounts for Covered Matters in excess of the amounts paid pursuant to Section II above. It is the intent of the parties, by this Agreement for Judgment, (1) to obviate the necessity and expense of having any Company be or remain a party of record or participate in the above entitled action or any suit relating to its liability for Covered Matters for the purpose of determining whether it may be a joint tortfeasor or otherwise additionally liable for "Covered Matters," (2) to further the important public policy of settling potential disputes amicably without resort to lengthy litigation, and (3) to protect the rights of the Commonwealth from infringement by any person or entity not a party to this Agreement for Judgment.

If, notwithstanding the foregoing, in any action brought by the Commonwealth with respect to Covered Matters, or in any other action arising out of any claim brought by the Commonwealth for Covered Matters which is determined in the same proceeding as said action by the Commonwealth, a court of competent jurisdiction enters a final judgment against any Company requiring the Company to pay sums for Covered Matters, in addition to those paid by the Company pursuant to this Agreement for Judgment, then the Commonwealth of Massachusetts will reduce the amount to be collected by the Commonwealth from the third party so that no Company shall be required to pay more than the amount specified for it on Appendix A hereto. If in an independent suit by a third party against any Company, a court of competent jurisdiction enters a final judgment against the Company, requiring the Company to pay sums for Covered Matters in addition to those paid by the Company pursuant to this Agreement for Judgment then the Commonwealth will grant to the Company a credit in the amount of that judgment against any future liability to the Commonwealth arising out of the presence of hazardous materials or other wastes located at the Silresim Site prior to the date of this Agreement for Judgment, or out of air, soil, or water contamination resulting from such materials; provided, however, that the provisions of this sentence will apply only if the Commonwealth receives reasonable notice of the third party's suit so as to provide an opportunity to participate as a party to the action. In no event will this paragraph be construed to require the Commonwealth to pay funds to any party from the state treasury.

The Commonwealth and the Companies, by agreeing to the entry of this Agreement for Judgment, do not admit, accept or intend to acknowledge any liability or fault by any party hereto with respect to any matter arising out of or relating to the Silresim Site. This express denial of any and all liability or fault attaches to any and all matters relating to or arising out of the Silresim Site and removal of materials from the Silresim Site by or under the direction of the Commonwealth.

IN WITNESS WHEREOF, The Commonwealth of Massachusetts, has caused this Agreement for Judgment to be duly executed by it on its behalf by its duly authorized officer and, upon approval by the Court, agrees to fulfill its obligations hereunder in accordance with the terms and provisions of this Agreement for Judgment.

Garrity, J.:

The foregoing Agreement for Judgment having been reviewed by the Court and it appearing that the terms thereof are appropriate, will result in a fair and equitable resolution of claims presented, and provide sufficient basis for entry of a decree,

It is hereby ORDERED that the foregoing Agreement for Judgment is approved for entry.