of the non-settling PRPs, if the dollar figure were higher or it contained more protective reopeners. But the question is not whether this is a perfect settlement but whether it is one which is fair, adequate, and reasonable, and within the reaches of the public interest. We believe that the proposed decree constitutes such a settlement, and we will accept it.
VII. MANOR HEALTH CARE'S MOTION FOR INJUNCTIVE RELIEF
The last item we must consider is the rather unusual argument presented by defendant Manor Health Care in support of its motion to enjoin entry of the proposed decree.
As mentioned earlier, Manor Health Care ("Manor Health") is a successor corporation to Almo and has allegedly succeeded to Almo's potential liability for response costs incurred at Lipari. Almo, as we know, transported waste to Lipari and the United States contends that Nick Lipari's cashbooks and corresponding Almo checks, see Government Exhibit 19, reflect payments from Almo for 3380 drums of waste, some part of which was hazardous, to Lipari. This amount constitutes, potentially, approximately 6.1% of the total hazardous waste allegedly dumped at the landfill.
The source of Manor Health's opposition to the proposed decree derives from the fact that three of the de minimis settlors are CBS Records, Hercules and Owens-Corning. These companies were customers of Almo and any waste of theirs which was dumped at Lipari is alleged to have been transported by Almo.
The United States now contends that these settlors' waste each accounts for only a de minimis share of the waste at Lipari, and that Almo, based on Lipari's cashbooks, thus transported a large amount of waste to Lipari which was not generated by CBS, Hercules or Owens-Corning.
Since Manor Health's share of the waste, via Almo, is alleged to be 6.1%, the United States could not, based on the present evidence, accord Manor Health de minimis status. Until further discovery is completed, argues the United States, it cannot determine if the overage, i.e., the waste transported by Almo to Lipari in excess of that generated by CBS, Hercules and Owens-Corning, was hazardous waste within the meaning of CERCLA.
Manor Health contends that the administrative record, and the United States previous reading thereof, supports the view that all the hazardous wastes it transported to Lipari were generated by CBS, Hercules and Owens-Corning. Any excess was sewage or petroleum and thus not hazardous substances within the definition set forth in CERCLA. 42 U.S.C. §§ 9601 (14), 14(c); 40 C.F.R. para. 261. Since it is only linked to hazardous waste dumped at Lipari by its connection to three of the de minimis settlors, it is, therefore, says Manor Health, arbitrary and capricious for the EPA to refuse to accord it de minimis status and allow it to participate in the settlement.
Moreover, the settlement's extinguishment of Manor Health's contribution rights vis-a-vis Almo's former customers CBS, Hercules and Owens-Corning is fundamentally unfair since it foists their liability onto Manor Health without affording the successor the opportunity to litigate their comparative culpability. In addition, Manor Health argues that the decree, if approved, would allow the United States a "double recovery" since it could recover from Manor Health because it transported the very waste allegedly generated by three settlors; that is, for a given amount of waste, the United States would receive two payments, one from the generator and one from the transporter. To obviate these concerns, Manor Health originally requested that we grant it the following relief: (1) order the EPA to allow them to participate as a de minimis settlor or (2) "enjoin" entry of the partial consent decree until such time as it is modified to provide that:
(a) as a group, the non-settlors should face liability only for waste not originating with a settlor; (b) the non-settlors [should] remain liable only for those response costs [not] reimbursed by settlements; and (c) Manor Health Care, individually, would face liability only for hazardous waste other than that from settlors CBS, [Owens-Corning], or Hercules and Manor's monetary liability would be reduced by these settlors' payments.
Manor Health Care Reply Memorandum at 3.
With respect to Manor Health Care's first argument, we believe that there is simply no authority for this Court to require the United States to treat a PRP as a de minimis party. Nor may we review the EPA's refusal to accord a party such status. Section 122(a) of CERCLA expressly provides that a "decision of the President to use or not to use the procedures [set forth in § 122] is not subject to judicial review." 42 U.S.C. § 9622(a). We read this provision as applicable to the EPA's decision not to enter into a settlement with a particular PRP. Indeed, we know of no authority, and none has been cited to us, which permits us to compel any litigant, much less the United States, to settle a lawsuit with a particular defendant. Finally, as to this issue, it is simply erroneous for Manor Health Care to insist that it is entitled to de minimis status merely because Almo's customers are accorded such treatment. The fact is that, at the very least, Almo transported more waste than any one of its three settling customers separately generated since it transported all three's waste to Lipari. In Manor Health's view, a transporter which transported 20% of the hazardous waste to a facility would be entitled to be considered a de minimis settlor if its forty customers, one of which contributed more than a 1% volumetric share, were so treated. This makes very little sense. Here, we have a similar scenario: the Government states that Almo transported 6.1% of the total volume of waste at Lipari. Its three de minimis customers generated at most, argues the United States, 1.3% of the total volume and thus "even if its volumetric share were reduced by the maximum contribution possibly attributable to its three customers, Almo would still be responsible for [4.8%] of the total volume. A [4.8%] contribution does not qualify Manor Health for de minimis status" under the terms of this settlement. United States Brief at 66. Moreover, even if the United States' determination that a party is not entitled to de minimis status were reviewable, we have not been convinced that its decision to use a 1% share as a rule of thumb for according a party de minimis status was arbitrary and capricious, or improper under any other relevant standard of review.
In sum, we will not order EPA to treat Manor Health as a de minimis party or refuse to accept the settlement because it was not so treated.
Next, Manor Health's motion for an injunction will be denied. Not only has Manor Health made very little effort to articulate why it is entitled to such relief under the appropriate factors,
it requests this Court to, in essence, enjoin itself from entering the proposed decree. This request is extraordinary. If our entry of this decree is improper and deprives Manor Health of legal rights to which it is entitled, then the Court of Appeals will not hesitate to upset our ruling. This avenue of relief defeats any claim that Manor Health will be "irreparably harmed" if we enter this decree. In short, without listing the multiplicity of other reasons for not doing so, this Court refuses to enjoin itself.
We will, however, treat with Manor Health's contentions as arguments why the proposed decree is not fair, adequate and reasonable. Manor Health complains that the settlement is unfair because it extinguishes Manor Health's right to seek contribution from Almo's former customers, CBS, Hercules and Owens-Corning. Apparently, Manor Health believes such an extinguishment may be granted only if this Court forces an amendment to the decree which would provide that Manor Health cannot be held liable for response costs based on its transportation of CBS, Hercules and Owens-Corning's waste.
Manor Health views responsible parties as being liable, where no particular type of waste at the site is disproportionately hazardous, for only a proportion of the response costs equivalent to their percentage volumetric contribution of waste at the site. If a generator and a transporter are linked to a site because one generated and the other transported a certain shipment of waste, any settlement by one should extinguish the other's liability for response costs attributable to that waste. Otherwise, the United States would obtain a forbidden double recovery.
We agree with the United States that such reasoning is confused. While it is true that the settlement does extinguish Manor Health's contribution rights against all of the de minimis settlors, we do not understand why this must be accompanied by an excusal of all non-settlors for any liability for response costs attributable to conduct jointly engaged in by non-settlors and settlors as co-venturers. We agree with the Government that under Section 107 of CERCLA:
Each liable entity, including transporters, is jointly and severally liable to the United States for recovery of response costs. See United States v. Bliss, 667 F. Supp. 1298, 1307 (E.D. Mo. 1987); Conservation Chemical, at 175, 191; United States v. Northeastern Pharmaceutical and Chemical Co. ("NEPACCO"), 579 F. Supp. 823, 846-47 (W.D. Mo. 1984), aff'd in part and rev'd in part on other grounds, 810 F.2d 726 (8th Cir. 1986), cert. denied [ 484 U.S. 848], [98 L. Ed. 2d 102], 108 S. Ct. 146 (1987). Transporter liability is not extinguished whenever "co-venturing" generators satisfy their liability to the United States. Were this so, the statute would have expressed transporter liability in terms of "conditional" liability instead of "strict" liability; that is, transporters could only be held liable if the United States were unable to recover its costs from the generators the transporter serviced, and only liable to the extent the generators the transporter serviced would be liable. While we could all conjecture on how the Congress might have structured liability for recovery of United States' response costs, the fact is that Congress determined that transporters, like generators, shall be jointly and severally liable to the United States.