U.S. v. Atlas Lederer Co.

Decision Date13 July 2005
Docket NumberNo. 3:91cv309.,3:91cv309.
Citation494 F.Supp.2d 629
PartiesUNITED STATES of America, Plaintiff, v. ATLAS LEDERER COMPANY, et al., Defendants.
CourtU.S. District Court — Southern District of Ohio

Matthew A. Fogelson, Thomas A. Benson, United States Department of Justice, Washington, DC, Patrick Dennis Quinn, United States Attorney's Office, Dayton, OH, Sherry L. Estes, Assistant Regional Counsel, Chicago, IL, for Plaintiff.

Ben Lefever Pfefferle, III, Baker & Hostetler LLP, Louis L. McMahon, Richard Paul Fahey, Richard A. Frye, Chester Willcox & Saxbe, Columbus, OH, Michael A. Cyphert, Walter & Haverfield, Martin Harry Lewis, Scott Alan Richardson, Thomas A. Linton, Ohio Bell Telephone Company, Cleveland, OH, Douglas G. Haynam, Louis E. Tosi, Shumaker Loop & Kendrick, Toledo, OH, Matthew Yackshaw, Day Ketterer Raley Wright & Rybolt, Canton, OH, Laura Alicia Ringenbach, Jonathan P. Saxton, William Roger Fry, Rendigs Fry Kiely & Dennis LLP, Stephen Neal Haughey, Frost Brown Todd LLC, Peter M. Burrell, Wood & Lamping, Cincinnati, OH, Charles H. Pangburn, III, Hemmer Spoor Pangburn Defrank & Kasson PLLC, Ft. Mitchell, KY, Jacqueline F. Allen, Philip R. Boxell, Pepper, Hamilton & Scheetz, Philadelphia, PA, Charles Patrick Houdyschell, Jr., Darrell V. McGraw, Jr., Charleston, WV, Martin A. Beyer, Sebaly Shillito & Dyer, Dayton, OH, Ralph C. Megargel, Delbene & Megargel, Kent, OH, for Defendants.

Acme Metals, pro se.

DECISION AND ENTRY SUSTAINING PLAINTIFF'S RENEWED MOTION TO ENTER PROPOSED CONSENT DECREE (DOC. # 621)

RICE, District Judge.

This litigation arises under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601, et seq. Plaintiff United States of America has settled its claims with the members of the United Scrap Lead Respondent Group ("Respondent Group"). Pursuant to § 107(a) and § 113(f) of CERCLA, 42 U.S.C. § 9607(a) and § 9613(f), the United States and the Respondent Group now seek to recover the costs they have incurred to remediate environmental contamination at the United Scrap Lead Company Superfund Site ("USL Site" or "Site") in Troy, Ohio, from other potentially responsible parties. At that Site, United Scrap Lead Company ("USL") collected used car, truck and industrial batteries from numerous businesses and individuals. The batteries were broken open to remove the lead cores and lugs, which caused the USL Site to become contaminated with hazardous substances, including lead and lead contaminated sulfuric acid. As a result of that contamination, the Site has been included on the National Priorities List. See 40 C.F.R. Pt. 300, App. B. The Respondent Group has agreed to fund the remedy which has resulted in the cleanup of that hazardous waste site.

The United States has settled its claims with four potentially responsible parties ("PRPs") and has lodged a proposed Consent Decree which reflects those settlements with the Court. See Doc. # 592. Those settlements, would also resolve the Respondent Group's claims for contribution against those four PRPs. Thereafter, the United States filed a motion requesting that the Court approve and file that proposed Consent Decree. See Doc. # 605. Two memoranda opposing the Government's motion were filed, one from Defendant Senser Metals, Inc. ("Senser") (see Doc. # 610), and the other by Defendants Caldwell Iron & Metal, Norman's Auto Wrecking, Ace Iron & Metal, Inc., Larry Katz and Alan Levine (collectively "Caldwell"). See Doc. # 611.

In its Decision of March 21, 2005 (Doc. # 618), the Court overruled the Government's motion, without prejudice. In particular, the Court noted that Senser and Caldwell had argued that the settlements were unfair, unreasonable and inadequate, because they were based upon a flawed allocation. The United States had defended the allocation in large measure with what it described as the "declaration" of Ben Pfefferle, III ("Pfefferle"), an attorney representing the Respondent Group.1 Since that document was not signed under penalty of perjury, the Court concluded that it was not a declaration and that, therefore, the United States had failed to present evidence supporting its request that the Court approve its settlements. As a consequence, the Court directed the United States to renew its motion and to support its renewal with a declaration or affidavit by Pfefferle. The Court also indicated that it would rule upon the renewed motion on the basis of the memoranda which had been previously filed. The United States has filed its Renewed Motion to Approve Consent Decree (Doc. # 621). That renewed motion is supported by an affidavit from Pfefferle in which he attests under oath to the truth of the statements in his previously filed "declaration." The Court now rules upon the Government's renewed motion.

The Government has settled with Defendants Broadway Iron & Metal ("Broadway"), Barker Junk Company, Inc. ("Barker"), Moyers Auto Wrecking ("Moyers") and U.S. Waste Materials ("U.S.Waste") (collectively "settling PRPs"). The settlements with Moyers and U.S. Waste are predicated upon their limited ability to pay, with those PRPs agreeing to pay $34,000 and $9,000, respectively. The settlements with Broadway and Barker have been based upon a settlement allocation developed by the Respondent Group in 1999. However, those settlements have not employed the discount previously utilized to induce early settlements. If the proposed Consent Decree is entered by the Court, Broadway will pay $53,189.73, and Barker will pay $80,092.00,2 with the four settlements resulting in the payment of $137,499.18 to the United States and $38,782.55 to the Respondent Group, a total of $176,281.73. If the Court were to adopt the proposed Consent Decree, the claims of the United States and the Respondent Group against the settling PRPs would be dismissed, and those Defendants would be provided protection against claims for contribution by other PRPs in accordance with §§ 113(f)(2) and 122(h)(4) of CERCLA, 42 U.S.C. § § 9613(f)(2) and 9622(h)(4).

The Government requests that the Court enter the proposed Consent Decree, in accordance with § 122(g) and (h) of CERCLA, which provide in pertinent part:

(g) De minimis settlements

(1) Expedited final settlement

Whenever practicable and in the public interest, as determined by the President, the President shall as promptly as possible reach a final settlement with a potentially responsible party in an administrative or civil action under section 9606 or 9607 of this title if such settlement involves only a minor portion of the response costs at the facility concerned and, in the judgment of the President, the conditions in either of the following subparagraph (A) or (B) are met:

(A) Both of the following are minimal in comparison to other hazardous substances at the facility:

(i) The amount of the hazardous substances contributed by that party to the facility.

(ii) The toxic or other hazardous effects of the substances contributed by that party to the facility.

(B) The potentially responsible party

(i) is the owner of the real property on or in which the facility is located;

(ii) did not conduct or permit the generation, transportation, storage, treatment, or disposal of any hazardous substance at the facility; and

(iii) did not contribute to the release or threat of release of a hazardous substance at the facility through any action or omission.

This subparagraph (B) does not apply if the potentially responsible party purchased the real property with actual or constructive knowledge that the property was used for the generation, transportation, storage, treatment, or disposal of any hazardous substance.

. . . . .

(5) Effect of agreement

A party who has resolved its liability to the United States under this subsection shall not be liable for claims for contribution regarding matters addressed in the settlement. Such settlement does not discharge any of the other potentially responsible parties unless its terms so provide, but it reduces the potential liability of the others by the amount of the settlement.

. . . . .

(7) Reduction in settlement amount based on limited ability to pay

(A) In general

The condition for settlement under this paragraph is that the potentially responsible party is a person who demonstrates to the President an inability or a limited ability to pay response costs.

(B) Considerations

In determining whether or not a demonstration is made under subparagraph (A) by a person, the President shall take into consideration the ability of the person to pay response costs and still maintain its basic business operations, including consideration of the overall financial condition of the person and demonstrable constraints on the ability of the person to raise revenues.

(C) Information

A person requesting settlement under this paragraph shall promptly provide the President with all relevant information needed to determine the ability of the person to pay response costs.

(D) Alternative payment methods

If the President determines that a person is unable to pay its total settlement amount at the time of settlement, the President shall consider such alternative payment methods as may be necessary or appropriate.

(8) Additional conditions for expedited settlements

(A) Waiver, of claims

The President shall require, as a condition for settlement under this subsection, that a potentially responsible party waive all of the claims (including a claim for contribution under this chapter) that the party may have against other potentially responsible parties for response costs incurred with respect to the facility, unless the President determines that requiring a waiver would be unjust.

. . . . .

(11) No judicial review A determination by the President under paragraph (7), (8), (9), or (10) shall not be subject to judicial review.

. . . . .

(h) Cost recovery...

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    ... ... district court.”); United States v. Atlas Lederer ... Co. , 494 F.Supp.2d 629, 634 (S.D. Ohio 2005) ... (“Whether to grant such ... ...
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    ... ... fairness. United States v. Atlas Lederer , 494 ... F.Supp.2d 629, 636 (S.D. Ohio July 13, 2005) (quoting ... Cannons ... ...
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    ...universally correct approach" for determiningcomparative fault and, by extension, substantive fairness. United States v. Atlas Lederer, 494 F. Supp.2d 629, 636 (S.D. Ohio July 13, 2005) (quoting Cannons Eng'g, 899 F.2d at 87). Nevertheless, in deciding whether to approve a settlement agreem......
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