899 F.2d 79 (1st Cir. 1990), 89-1979, United States v. Cannons Engineering Corp.

Docket Nº:89-1979 to 89-1984.
Citation:899 F.2d 79
Party Name:UNITED STATES of America, et al., Plaintiffs, Appellees, v. CANNONS ENGINEERING CORP., et al., Defendants, Appellees. Appeal of OLIN HUNT SPECIALTY PRODUCTS, INC., Defendant. UNITED STATES of America, et al., Plaintiffs, Appellees, v. CANNONS ENGINEERING CORP., et al., Defendants, Appellees. Appeal of CYN OIL CORP., Defendant. UNITED STATES of Amer
Case Date:March 20, 1990
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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899 F.2d 79 (1st Cir. 1990)

UNITED STATES of America, et al., Plaintiffs, Appellees,

v.

CANNONS ENGINEERING CORP., et al., Defendants, Appellees.

Appeal of OLIN HUNT SPECIALTY PRODUCTS, INC., Defendant.

UNITED STATES of America, et al., Plaintiffs, Appellees,

v.

CANNONS ENGINEERING CORP., et al., Defendants, Appellees.

Appeal of CYN OIL CORP., Defendant.

UNITED STATES of America, et al., Plaintiffs, Appellees,

v.

CANNONS ENGINEERING CORP., et al., Defendants, Appellees.

Appeal of BEGGS & COBB CORPORATION, etc., Defendant.

UNITED STATES of America, et al., Plaintiffs, Appellees,

v.

CANNONS ENGINEERING CORP., et al., Defendants, Appellees.

Appeal of SCOTT BRASS, INC., Defendant.

UNITED STATES of America, et al., Plaintiffs, Appellees,

v.

CANNONS ENGINEERING CORP., et al., Defendants, Appellees.

Appeal of KINGSTON-WARREN CORPORATION, Defendant.

UNITED STATES of America, et al., Plaintiffs, Appellees,

v.

CANNONS ENGINEERING CORP., et al., Defendants, Appellees.

Appeal of CROWN ROLL LEAF, INC., Defendant.

Nos. 89-1979 to 89-1984.

United States Court of Appeals, First Circuit

March 20, 1990

Heard Jan. 10, 1990.

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Gregory L. Benik, with whom Gerald J. Petros and Hinckley, Allen, Snyder & Comen, Providence, R.I., were on brief, for defendant Olin Hunt Specialty Products, Inc.

Robert C. Barber, with whom Duncan A. Maio and Looney & Grossman, Boston, Mass., were on brief, for defendant Cyn Oil Corp.

Martha V. Gordon, with whom Richard C. Nelson and Merrill & Broderick, Manchester, N.H., were on brief, for defendant Beggs & Cobb Corp.

John D. Deacon, Providence, R.I., for defendant Scott Brass, Inc.

Charles J. Dunn, with whom Jeffrey H. Karlin and Wadleigh, Starr, Peters, Dunn & Chiesa, Manchester, N.H., were on brief, for defendant Kingston-Warren Corp.

Paul S. Samson, with whom Riemer & Braunstein, Boston, Mass., was on brief, for defendant Crown Roll Leaf, Inc.

J. Carol Williams, Atty., Dept. of Justice, with whom Richard B. Stewart, Asst. Atty. Gen., David C. Shilton, Robert Maher, and Jerry Schwartz, Attys., Dept. of Justice, Washington, D.C., Wayne A. Budd, U.S. Atty., Mark Pearlstein, Asst. U.S. Atty., E. Michael Thomas, Sp. Asst. to the General Counsel, E.P.A., and Audrey Zucker, Asst. Regional Counsel, E.P.A., Boston, Mass., were on brief, for the U.S.

James M. Shannon, Atty. Gen., and Nancy E. Harper, Asst. Atty. Gen., Boston, Mass., on brief for Com. of Mass., plaintiff, appellee.

John P. Arnold, Atty. Gen., and George Dana Bisbee, Associate Atty. Gen., Concord, N.H., on brief for State of N.H., plaintiff, appellee.

Robert S. Sanoff, with whom Laurie Burt and Foley, Hoag & Eliot, Boston, Mass., were on brief, for twenty-five parties comprising "Cannons Sites Group," defendants, appellees.

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Rosanna Sattler and Posternak, Blankstein & Lund, Boston, Mass., on brief for First Londonderry Development Corp. et al., defendants, appellees.

Peter Cowan and Sheehan, Phinney, Bass & Green, Manchester, N.H., on brief for "Tinkham Parties," so-called, defendants, appellees.

Before TORRUELLA and SELYA, Circuit Judges, and BOWNES, Senior Circuit Judge.

SELYA, Circuit Judge.

"Superfund" sites are those which require priority remedial attention because of the presence, or suspected presence, of a dangerous accumulation of hazardous wastes. Expenditures to clean up such sites are specially authorized pursuant to 42 U.S.C. Sec. 9611 (1987). After the federal government, through the United States Environmental Protection Agency (EPA), 1 identified four such sites in Bridgewater, Massachusetts, Plymouth, Massachusetts, Londonderry, New Hampshire, and Nashua, New Hampshire (collectively, the Sites), the EPA undertook an intensive investigation to locate potentially responsible parties (PRPs). In the course of this investigation, the agency created a de minimis classification (DMC), putting in this category persons or firms whose discerned contribution to pollution of the Sites was minimal both in the amount and toxicity of the hazardous wastes involved. See 42 U.S.C. Sec. 9622(g) (1987). The agency staked out the DMC on the basis of volumetric shares, grouping within it entities identifiable as generators of less than one percent of the waste sent to the Sites. To arrive at a PRP's volumetric share, the agency, using estimates, constituted a ratio between the volume of wastes that the PRP sent to the Sites and the total amount of wastes sent there.

The EPA sent notices of possible liability to some 671 PRPs, including generators and nongenerators. Administrative settlements were thereafter achieved with 300 generators (all de minimis PRPs). In short order, the United States and the two host states, Massachusetts and New Hampshire, brought suits in the United States District Court for the District of Massachusetts against 84 of the PRPs who had rejected, or were ineligible for, the administrative settlement. The suits sought recovery of previously incurred cleanup costs and declarations of liability for future remediation under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. Secs. 9601-9675 (1987). The actions were consolidated.

With its complaint, the United States filed two proposed consent decrees. The first (the MP decree) embodied a contemplated settlement with 47 major PRPs, that is, responsible parties who were ineligible for membership in the DMC. This assemblage included certain generators whose volumetric shares exceeded the 1% cutoff point and certain nongenerators (like the owners of the Sites and hazardous waste transporters). The second consent decree (the DMC decree) embodied a contemplated settlement with 12 de minimis PRPs who had eschewed participation in the administrative settlement. As required by statute, notice of the decrees' proposed entry was published in the Federal Register. 53 Fed.Reg. 29,959 (Aug. 9, 1988). No comments were received.

The government thereupon moved to enter the decrees. Seven non-settling defendants objected. 2 After considering written

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submissions and hearing arguments of counsel, the district court approved both consent decrees and dismissed all cross-claims against the settling defendants. United States v. Cannons Engineering Corp., 720 F.Supp. 1027, 1052-53 (D.Mass.1989). The court proceeded to certify the decrees as final under Fed.R.Civ.P. 54(b). Id. These appeals followed.

I

We approach our task mindful that, on appeal, a district court's approval of a consent decree in CERCLA litigation is encased in a double layer of swaddling. In the first place, it is the policy of the law to encourage settlements. See, e.g., Donovan v. Robbins, 752 F.2d 1170, 1177 (7th Cir.1985); City of New York v. Exxon Corp., 697 F.Supp. 677, 692 (S.D.N.Y.1988). That policy has particular force where, as here, a government actor committed to the protection of the public interest has pulled the laboring oar in constructing the proposed settlement. See F.T.C. v. Standard Financial Management Corp., 830 F.2d 404, 408 (1st Cir.1987) (discussing need for judicial deference "to the agency's determination that the settlement is appropriate"); S.E.C. v. Randolph, 736 F.2d 525, 529 (9th Cir.1984) (similar). While "the true measure of the deference due depends on the persuasive power of the agency's proposal and rationale, given whatever practical considerations may impinge and the full panoply of the attendant circumstances," Standard Financial, 830 F.2d at 408, the district court must refrain from second-guessing the Executive Branch.

Respect for the agency's role is heightened in a situation where the cards have been dealt face up and a crew of sophisticated players, with sharply conflicting interests, sit at the table. That so many affected parties, themselves knowledgeable and represented by experienced lawyers, have hammered out an agreement at arm's length and advocate its embodiment in a judicial decree, itself deserves weight in the ensuing balance. See Exxon, 697 F.Supp. at 692. The relevant standard, after all, is not whether the settlement is one which the court itself might have fashioned, or considers as ideal, but whether the proposed decree is fair, reasonable, and faithful to the objectives of the governing statute. See Durrett v. Housing Authority, 896 F.2d 600, 603-04 (1st Cir.1990) (describing district court's task). Thus, the first layer of insulation implicates the trial court's deference to the agency's expertise and to the parties' agreement. While the district court should not mechanistically rubberstamp the agency's suggestions, neither should it approach the merits of the contemplated settlement de novo.

The second layer of swaddling derives from the nature of appellate review. Because approval of a consent decree is committed to the trial court's informed discretion, see id. 896 F.2d at 603-04; United States v. Hooker Chemical & Plastics Corp., 776 F.2d 410, 411 (2d Cir.1985); In re AWECO, Inc., 725 F.2d 293, 297 (5th Cir.), cert. denied, 469 U.S. 880, 105 S.Ct. 244, 83 L.Ed.2d 182 (1984), the court of appeals should be reluctant to disturb a reasoned exercise of that discretion. In this context, the test for abuse of discretion is itself a fairly deferential one. We recently addressed the point in the following terms:

Judicial discretion is necessarily broad--but it is not absolute. Abuse occurs when a material factor deserving significant weight is ignored, when an improper factor is relied upon, or when all proper and no improper factors are assessed, but the court makes a serious mistake in...

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