US v. Wallace, Civ. A. No. 3:93-CV-0838-P.

• Decision Date: 17 July 1995
• Docket Number: Civ. A. No. 3:93-CV-0838-P.
• Citation: 893 F. Supp. 627
• Parties: UNITED STATES of America and the State of Texas, Plaintiffs, v. David Bowen WALLACE, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

893 F. Supp. 627

UNITED STATES of America and the State of Texas, Plaintiffs, v. David Bowen WALLACE, et al., Defendants.

Civ. A. No. 3:93-CV-0838-P.

United States District Court, N.D. Texas, Dallas Division.

July 17, 1995.

COPYRIGHT MATERIAL OMITTED

Katherine Savers McGovern, Dallas, TX, Michael C. Barra, Dallas, TX, Richard Hayden Stephens, Fort Worth, TX, Katherine A. Dreyfus, Washington, DC, Gary Fox, Washington, DC, Richard Gladstein, Washington, DC, Myles E. Flint, Washington, DC, Paul J. Schaeffer, Washington, DC, Ronald M. Sprizter, Washington, DC, Leslie David Romo, Austin, TX, Mehron Azarmehr, Austin, TX, Paul Matthews Terrill, III, Austin, TX, Albert M. Bronson, Austin, TX, for plaintiffs.

Thomas E. Shaw, Dallas, TX, Timothy A. Vanderver, Jr., Washington, DC, Paul A.J. Wilson, Washington, DC, David Patrick Long, Dallas, TX, Werner Anthony Powers, Dallas, TX, Kay Michele Crider, Dallas, TX, William Michael Byrd, Jr., Dallas, TX, Kathleen McElroy LaValle, Dallas, TX, Thomas L. Cantrell, Dallas, TX, Earl F. Hale, Dallas, TX, Charles C. Jordan, Dallas, TX, Daniel White Shieder, Jr., Dallas, TX, Freeman Lee Mittenthal, Dallas, TX, Mark Malveaux, Dallas, TX, Charles Turner, Chicago, IL, David E. Ross, Cincinnati, OH, Timothy R. McCormick, Dallas, TX, James W. Moorman, Washington, DC, Elizabeth T. Van Horn, Washington, DC, for defendants.

MEMORANDUM OPINION AND ORDER

SOLIS, District Judge.

Now before the Court are:

1. United States' Motion for Entry of Consent Decree and brief in support thereof, filed November 30, 1994;

2. State of Texas' (TNRCC) Motion for Entry of Consent Decree and brief in support thereof, filed December 16, 1994;

3. Response and Joinder of Settling Defendants to United States' Motion for Entry of Consent Decree, filed December 13, 1994;

4. Opposition of Defendants United Technologies Corporation and CTU of Delaware, Inc. to United States' Motion for Entry of Consent Decree, filed December 19, 1994;

5. Response in Opposition to Defendants United Technologies Corporation and CTU of Delaware, Inc. to Response and Joinder of Settling Defendants to United States' Motion for Entry of Consent Decree, filed January 5, 1995;

6. Opposition of Defendants United Technologies Corporation and CTU of Delaware, Inc. to State of Texas' Motion for Entry of Consent Decree, filed January 6, 1995;

7. United States' Reply to Opposition of Defendants United Technologies Corporation and CTU of Delaware, Inc. to Motion for Entry of Consent Decree, filed January 12, 1995; and

8. Settling Defendants' Reply to Response in Opposition to Defendants United Technologies Corporation and CTU of Delaware, Inc. to Response and Joinder of Settling Defendants to United States' Motion for Entry of Consent Decree, filed January 20, 1995.

Upon review of the motions, the supporting and opposing memoranda, and the applicable law, the Court finds the motions for entry of the consent decree should be GRANTED.

BACKGROUND

Bio-Ecology Systems, Inc. operated a waste treatment and disposal facility at the Bio-Ecology Systems Superfund Site ("Site") in Grand Prairie, Texas, from 1972 to 1978. By agreement between the Environmental Protection Agency ("EPA") and the State of Texas ("State"), a Remedial Investigation and a Feasibility Study was performed during 1982, 1983, and 1984, documenting the presence of numerous hazardous waste substances at the Site. The release or threatened release of the hazardous substances from the Site posed a substantial hazard to the public health, welfare and the environment, warranting remedial action pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601, et al. ("CERCLA").

The United States of America ("United States") filed this case, pursuant to CERCLA, 42 U.S.C. § 9607, to recover costs incurred in responding to the releases or threatened releases of hazardous substances from the Site. The State also filed suit, pursuant to CERCLA, 42 U.S.C. §§ 9604 and 9607, for the recovery of costs incurred for the remedial action at the Site, which case was previously consolidated herewith. The United States and the State seek recovery from the parties responsible for contributing the hazardous substances to the Site. The defendants filed cross-claims and counterclaims against the United States, pursuant to CERCLA, 42 U.S.C. § 9607, alleging the U.S. Air Force ("USAF"), the Drug Enforcement Agency ("DEA"), and the Small Business Administration ("SBA") were jointly and severally liable for response costs at the Site. Further, the defendants filed a third party complaint against the State, alleging the Texas Department of Agriculture ("TDA") and the University of Texas at Dallas ("UTD") were jointly and severally liable for response costs and seeking contribution under CERCLA, 42 U.S.C. § 9613(f).

The United States initiated settlement negotiations with the defendants, including the federal and state agencies, each represented by independent counsel. After months of arms-length, good faith settlement negotiations, seventy three (73) of the defendants ("Settling Defendants"), the federal agencies ("Settling Federal Agencies"), and the state agencies ("Settling State Agencies") lodged a proposed consent decree ("Consent Decree") with the Court and published a notice of lodging in the Federal Register on August 12, 1994, for the thirty (30) day public comment period pursuant to CERCLA, 42 U.S.C. § 9622(i). The only comments submitted were the comments in opposition by non-settling defendants, United Technologies Corporation and CTU of Delaware, Inc. ("Defendants"). Defendants also submitted additional comments in opposition to the Consent Decree upon the Court's grant of an extension of the comment period. Following the Department of Justice's review of the comments submitted by Defendants and determination that the proposed settlement was appropriate, proper and adequate, the United States filed the instant motion for approval and entry of the Consent Decree.

APPLICABLE LAW

The Supreme Court has long endorsed the propriety of the use and entry of consent judgments. SEC v. Randolph, 736 F.2d 525, 528 (9th Cir.1984) (citing Swift & Co. v. United States, 276 U.S. 311, 325-26, 48 S.Ct. 311, 314-15, 72 L.Ed. 587 (1928); Pope v. United States, 323 U.S. 1, 12, 65 S.Ct. 16, 22, 89 L.Ed. 3 (1944); United States v. Armour & Co., 402 U.S. 673, 681, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971)). "It is axiomatic that the federal courts look with great favor upon the voluntary resolution of litigation through settlement." Armstrong v. Board of Sch. Dirs. of Milwaukee, 616 F.2d 305, 312 (7th Cir.1980) (citations omitted); see also United States v. Cannons Engg. Corp., 899 F.2d 79, 84 (1st Cir.1990) ("... it is the policy of the law to encourage settlements.") (citing 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)). Consent decrees provide informal resolution of disputes, thereby lessening the risks and costs of litigation, as well as providing more security to the parties than a settlement agreement where "the only penalty for failure to abide by the agreement is another suit." SEC v. Randolph, 736 F.2d 525, 528 (9th Cir.1984) (citing Carson v. American Brands, Inc., 450 U.S. 79, 87, 101 S.Ct. 993, 998, 67 L.Ed.2d 59 (1981); Dacanay v. Mendoza, 573 F.2d 1075, 1078 (9th Cir.1978); United States v. City of Miami, 664 F.2d 435, 439 (5th Cir.1981) (en banc) (Rubin, J., concurring)).

CERCLA specifically provides for the use of consent decrees to encourage potentially responsible persons ("PRPs") "to contribute to cleanup costs and/or to undertake response activities themselves." United States v. Cannons Engg. Corp., 899 F.2d 79, 85 (1st Cir.1990). The Department of Justice is authorized to settle claims brought under section 9607 for costs incurred by the United States. 42 U.S.C. § 9622(h). "We believe that Congress intended, first, that the judiciary take a broad view of proposed settlements, leaving highly technical issues and relatively petty inequities to the discourse between parties; and second, that the district courts treat each case on its own merits, recognizing the wide range of potential problems and possible solutions." Id. at 85-86.

The district court reviewing a proposed consent decree formulated pursuant to CERCLA should ensure that the settlement protects public health and the environment to the greatest extent possible under currently existing technology. United States v. Hooker Chems. & Plastics Corp., 540 F.Supp. 1067, 1073 (W.D.N.Y.1982). Accordingly, the court should review the proposal to determine whether the consent decree is fair, reasonable, and faithful to the objectives of CERCLA. See Id.; United States v. Cannons Engg. Corp., 899 F.2d 79, 84 (1st Cir. 1990) (citing Durrett v. Housing Authority, 896 F.2d 600 (1st Cir.1990)); SEC v. Randolph, 736 F.2d 525, 529 (9th Cir.1984) (citations omitted) ("Unless a consent decree is unfair, inadequate, or unreasonable, it ought to be approved."); United States v. Cannons Engg. Corp., 899 F.2d 79, 85 (1st Cir.1990) (citing H.R.Rep. No. 253, Pt. III, 99th Cong., 1st Sess. 19 (1987), reprinted in 1986 U.S.Code Cong. & Admin. News 2835, 3038, 3042).

Approval by state and federal agencies which are charged with the implementation and review of the various environmental protection statutes carries with it a strong presumption of the validity of the proposed consent decree. United States v. Hooker Chems. & Plastics Corp., 540 F.Supp. 1067, 1080 (W.D.N.Y.1982).

The presumption in favor of settlement is particularly strong where a consent decree has been negotiated by the Department of Justice on behalf of a federal administrative agency `specially equipped, trained or oriented in the field....' United States v. National Broadcasting Co., 449 F.Supp. 1127, 1144 (C.D.Cal.1978). EPA is such an agency.

United States v....