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UNITED STATES v. KRAMER

September 3, 1998

UNITED STATES OF AMERICA, Plaintiff,
v.
HELEN KRAMER, et al., Defendant. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff, v. ALMO ANTI-POLLUTION SERVICES CORP., et al., Defendants.



The opinion of the court was delivered by: SIMANDLE

MEMORANDUM OPINION

 SIMANDLE, District Judge:

 In connection with the remedying of conditions at the Helen Kramer Landfill Superfund Site in Mantua Township, New Jersey, the United States, on behalf of the U.S. Environmental Protection Agency and the State of New Jersey Department of Environmental Protection, have filed the present motions for entry of federal and state consent decrees resolving all direct claims of the governments in these multi-party hazardous waste cases arising under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601, et seq., the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11, et seq., (the "Spill Act"), and other state statutes. The proposed decrees were published for public comment in May, 1998, and no comments were received.

 Under the proposed federal Consent Decree, the "Settling Defendants" (comprised of all viable direct defendants and most third-party defendants, numbering nearly 250 parties) will collectively pay the sum of $ 95 million plus interest to the United States over five years, in reimbursement of past response costs with respect to the Site. A subset of these parties, called the Settling Work Defendants, *fn1" will perform studies needed by EPA to perform its five-year reviews.

 Under two parallel Consent Decrees with the State of New Jersey (the "State Consent Decree") the Settling Defendants will pay $ 9.77 million to the State plus interest accrued on the unpaid balance, reimbursing the State's past response costs at the site. The Settling Defendants will be obligated to continue operation and maintenance of the Site and to pay the cost of future response actions through May 12, 2023. The State NRD Consent Decree also requires the Settling Defendants to purchase and conserve a 151-acre parcel of wetlands and wooded uplands and to pay the State an additional $ 190,000 in compensation for natural resource damages. The federal Consent Decree also resolves natural resource damages claims on behalf of the federal natural resource trustees (the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration) by incorporating the Settling Defendants' obligations to comply with the State Natural Resource Damages Consent Decree.

 I. PROCEDURAL HISTORY AND FACTUAL BACKGROUND

 The Helen Kramer Landfill in Mantua Township, New Jersey, was declared a federal Superfund site and placed upon the national priorities list by the U.S. Environmental Protection Agency pursuant to the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601, et seq. The United States undertook the Remedial Investigation and Feasibility Study, the Remedial Design, and remedy construction, which was largely completed in 1994. These remedial costs, together with enforcement costs and prejudgment interest to January, 1998, have amounted to approximately $ 123 million. The United States commenced suit in 1989 to recover all response and remedial costs under Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), and the government had by 1997 filed a Third Amended Complaint against the Direct Defendants alleged to be generators and transporters of hazardous substances deposited at the Landfill. After extensive litigation and settlement efforts, the United States and Direct Defendants reached agreement upon a proposed Consent Decree to resolve the United States' claims against all viable Direct Defendants and a wide majority of the Third-Party Defendants. The Consent Decree was lodged with the Court on May 8, 1998, was served upon all parties in the case including non-settlors, and was published for public comment on June 1, 1998, see 63 Fed. Reg. 29,754-55, consistent with Department of Justice regulations at 28 C.F.R. § 50.7. The United States received no comments.

 Similarly, the State DEP commenced suit in 1989 and reached substantial agreement with a subgroup of the Settling Defendants to enable operation and maintenance functions at the Site to be transferred to these settling parties in 1997. The Site had been turned over to the NJDEP for oversight and maintenance on May 11, 1994. The State decrees were lodged with the court in May, 1998, circulated to all parties, and published through newspapers of general circulation seeking comment. The State received no comments. The Settling Defendants are responsible for all future response costs and all operation and maintenance endeavors subject to a comprehensive compliance schedule through May, 2023, when it is anticipated the remediation will be complete.

 One party has objected to these proposed Consent Decrees, namely, third-party defendants Sun Company, Inc. (R & M) and Sun Ship, Inc. [hereafter "Sun"], which filed "tentative opposition" arguing that the court needs more information before it can undertake the fairness determination required by CERCLA, and inviting the court to protect Sun and other non-settlors by holding that the governments are limited to recovering the proportionate share of liability from any non-settling defendants and that third-party plaintiffs cannot seek to recover more than their fair share in the remaining contribution action. (Tentative Opp. Br. at 7-11.) In its objection filed seven days before the August 7, 1998 hearing date upon these motions, Sun seeks discovery of information underlying the settlement among the Settling Defendants, including the quantities of material and its nature and toxicity, that each settling party was assumed, for purposes of settlement, to have sent to the Site, as well as the settlement share to be paid by each settling party.

 The Settling Work Defendants, also known as the "Offerors Group," strenuously oppose Sun's request, arguing that the settlement process leading to the allocation among Settling Defendants was robust and fair to all participants, including Sun, which assertedly had full access to the settlement process information which it now seeks. *fn2" The United States and State of New Jersey likewise assert that Sun has raised no meritorious objection, because details as to each party's settlement share are unnecessary to the assessment of the fairness of the overall settlement, and because Sun's potential liability to the United States is irrelevant and moot. *fn3"

 II. The Settlement Process

 To understand the proposed settlements, we start with the processes that led to them. When the contours of the federal and state cases became apparent, and after early dispositive motion practice directed at numerous affirmative defenses, United States v. Kramer, 757 F. Supp. 397 (D.N.J. 1991), the parties expressed an interest in seeking to resolve the case. Because the construction of the EPA's remedy was ongoing through 1993, the total costs were unknown. The numerous potentially responsible parties ("PRP's") were aligned into Liaison Groups, *fn4" and representatives of these groups went about drafting a plan for a serious, far-reaching process of data gathering, analysis, and negotiation. This plan was stated in the Settlement Process Protocol, which creates the procedural vehicle for these settlement efforts among the PRP's. Because the ambitious efforts required by the Settlement Process Protocol would require dedication of great resources of time and money, the court agreed to temporarily stay the litigation. The Protocol was adopted by the Settlement Process Participants and was approved by the court, and the liaison counsel were elected to coordinate the process. *fn5"

 The purpose of this process was to reach a fair and reasonable allocation of potential liability among some 300 potentially responsible parties in an ADR process which would create a reliable data base and apply reasonable assumptions regarding the comparative impact of each party's waste stream to the Helen Kramer Landfill. Pursuant to the requisites of the Protocol, all participants were required to respond to a detailed common questionnaire, *fn6" and responses were audited by the Settlement Process Committee and by the selected Waste Accountant, which was a large accounting firm. (Hyatt Aff. P 5.) When an adequate data base had been achieved, after many months of efforts, the participants selected Clean Sites, Inc., an environmental litigation support firm specializing in dispute resolution, to serve as the Allocation Consultant. (Hyatt Aff. P 6).

 Pursuant to the Protocol, Clean Sites prepared an allocation plan, which was to be a non-binding "suggested method by which the costs of any such settlement [with the United States and the State] could be divided among the Participants." (Settlement Process Protocol, P III.D.1.) Clean Sites considered criteria suggested by the participants as equitable factors relevant to the relative fault or culpability of the participants. (Hyatt Aff. P 7) Clean Sites then articulated those criteria and applied them, attempting to replicate the result which would have occurred in an allocation of responsibility by the court after trial under CERCLA Section 113(f), 42 U.S.C. § 9613(f). (Hyatt Aff. P 7.) Clean Sites issued a draft allocation report which was subject to advocacy and cross-fire within the settlement process, as one additional step toward a reliable and fair allocation. The final allocation was the "Clean Sites Report."

 Under the Protocol, at least two-thirds of weighted voting power was required for the acceptance of the Report as a basis for further negotiations, but the vote fell just short. (Hyatt Aff. P 9.) When no alternative allocation plan emerged, the court concluded that sufficient time had been consumed in the allocation process without coming to an approved final plan, and the stay of litigation was lifted, including discovery and motion practice related to the recoverable costs and the liability of direct defendants.

 The participants then decided to continue to use the Clean Sites Report as a basis for further negotiations among themselves, subject to the court's supervision by United States Magistrate Judge Joel B. Rosen, who served as Settlement Judge from 1996 to date. *fn7" The participants selected co-mediators *fn8" and, pursuant to Section IV of the Protocol, "entered into negotiations to allocate among themselves the cost to settle some or all of the claims associated in the [Federal and State cases]." (Hyatt Aff. P 9.)

 Meanwhile, negotiations toward a global settlement had gone forward between the United States and State of New Jersey and the representatives of various groups of PRP's. Court-supervised discussions attempted to develop a framework for compromise of the parties' positions in 1994 regarding the overall settlement demands. *fn9" The State reached agreement-in-principle with a group of participants who would take over the operation and maintenance functions at the site in 1997, to be followed upon approval of the Consent Decree by payment of a sum of money which reduces somewhat the State's past costs and guarantees payment of future remedial and administrative costs. The United States reached tentative accord with the Offerors Group, which is the core group of defendants bearing the transaction costs of settlement and the risk of under-recovery.

 According to counsel for the United States, "The Offerors Group offered to settle with the United States, based both on prior and anticipated settlements with other parties and on their willingness to pursue non-settlors in contribution litigation." Mem. of United States at 7.

 The Clean Sites Report served as the basis for further negotiations between the Offerors Group and other Settlement Process Participants, resulting in a negotiated allocation among the Offerors Group and about 240 other participants. *fn10" This overall group became the Settling Defendants listed in Appendix A to the Consent Decree, all of which have submitted signature pages now attached to the original Consent Decree.

 In addition to these proposed Consent Decrees with the federal and state governments, the United States anticipates concluding negotiations in the future for an amendment to this decree to provide for de minimis treatment of approximately 150 of the Settling Defendants. The main effect of such a settlement would be to remove the "re-opener" conditions on the United States' covenant not to sue with respect to such de minimis parties, pursuant to CERCLA § 122(g), 42 U.S.C. § 9722(g). Until such negotiations are concluded, such a de minimis component is not presently before this court. *fn11"

 III. STANDARDS FOR ...


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