Free Memorandum - District Court of Arizona - Arizona

1 SUE ELLEN WOOLDRIGE, Assistant Attorney General Environment & Natual Resources Division
2 United States Department of Justice

3 AN C. HUEY, Trial Attorney
Distrct of

Columbia Bar No. 375676

4 Environmental Enforcement Section

Environment & Natual Resources Division

5 United States Deparent of Justice
301 Howard Street, Suite 1050
6 San Francisco, California 94105 Telephone: (415)744-6480

7

PAULK. CHATON
District of Arzona

8 United States Attorney

9

RICHAR PATRICK
10 Assistant U.S. Attorney Arzona State Bar No. 05148

11 Two Renaissance Square
40 North Central Avenue, Suite 1200
12 Phoenix, Arzona 85004-4408

Telephone: (602) 514-7500
13

ATTORNYS FOR PLAITIFF UNTED STATES OF AMERICA
14
15

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA
) ) )

16

17 Crane Co., et aI.,

18 Plaintiff( s),

19 v.
21

) )
) )

CN -03-2226- PHX -ROS CN -04-1400- PHX -ROS (Consolidated)

20 United States of America,

Defendant.

)
)

MEMORAUM OF LAW IN SUPPORT OF MOTION TO ENTER PARTIA
CONSENT DECREE

22
23 On July 8,2004, the United States of America ("United States"), on behalf of

)

the

24 Administrator of

the United States Environmental Protection Agency ("EP A"), filed a complaint

25 in this matter pursuant to Sections 106 and 107 of

the Comprehensive Environmental Response,
the

26 Compensation, and Liability Act ("CERCLA"), 42 U.S.c. §§ 9606 and 9607. By Order of

27 Cour, the United States' complaint was consolidated with a complaint fied by defendants Crane
28 Co. and Unidynamics/Phoenix, Inc. (hereinafter referred to collectively as "Defendants") against

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1 the United States and related paries under the consolidated caption, Crane Co. et aI. v. United
2 States et aI., CIV 03-2226-PHX-ROS, CIV 04-1400-PHX-ROS (Consolidated).
3 On April 26, 2006, the United States lodged a proposed Parial Consent Decree (the

4 "Decree") with the Court. After lodging the Decree, the United States published notice of the
5 Decree in the Federal Register and requested comments from the public on the proposed Decree
6 for a period ofthirty days. The United States received two comment letters, submitted by the

7 Cities of Goodyear and Avondale.

8 The two comment letters do not oppose entry ofthe Decree, but instead seek assurances
9 that the Cities will be kept informed regarding the implementation of the Site remedy under the

10 settlement. The United States has carefully considered the comments, which are discussed more

11 fully below (p. 5), and concluded that they do not raise issues that would cause it to withdraw its
12 consent to the Decree. The United States continues to believe that the proposed Decree is fair,

13 reasonable, and consistent with the puroses CERCLA, and the Defendants do not oppose entr of
14 the Decree. Therefore, the United States respectfully moves this Court to approve, sign, and enter

15 the proposed Parial Consent Decree.

16 i. BACKGROUND
17 A. The Complaint
18 The United States filed a complaint in this matter pursuant to Sections 106 and 107 of the
19 Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42
20 U.S.c. §§ 9606 and 9607. The United States in its complaint seeks: (1) reimbursement of

costs

21 incurred and to be incured by EP A and the Deparment of Justice for response actions at the
22 Phoenix-Goodyear Airport (North) Superfund Site (the "Site") in Goodyear, Arzona, together

23 with accrued interest; (2) performance of studies and response work by the Defendants at the Site
24 consistent with the National Contingency Plan, 40 C.F.R. Par 300 (as amended) ("NCP"); (3)
25 compliance by defendant Unidynamics/Phoenix, Inc. with the terms of

two unilateral

26 administrative orders issued by EP A directing Unidynamics/Phoenix, Inc. to perform remedial

27 design and remedial action at the Site; and (4) civil penalties pursuant to Section 106(b)(I) of

28 CERCLA, 42 U.S.c. § 9606(b)(I), and punitive damages pursuant to Section 107(c)(3) of
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1 CERCLA, 42 U.S.C. § 9607(c)(3), for defendant Unidynamics/Phoenix, Inc.'s failure to comply
2 with the terms ofthe unilateral administrative orders ("UAOs").

3

B.

The Proposed Parial Consent Decree

4 The Decree provides that Defendants will conduct all necessar investigatory and remedial
5 activities at the Site. Defendants will pay $6.7 million to reimburse the United States for its past

6 costs, and the Decree provides for the payment of futue response costs. In addition, to resolve the
7 United States' claims for civil penalties and punitive damages for failure to comply with the
8 UAOs, Defendants will pay a civil penalty of$500,000 and perform a Brownfields Inventory,
9 Assessment, and Remediation Supplemental Environmental Project within the City of Goodyear,

10 Arzona, valued at $1 million.
11

12 II.
13

THE CONSENT DECREE is FAIR, REASONABLE, AND IN THE PUBLIC INTEREST
A.

14

Standard for Approving Consent Decrees

15 Approval of a proposed consent decree is committed to the informed discretion of the
16 district cour. United States v. State of Oregon,

913 F. 2d 576,580 (9th Cir. 1990); SEC v.
be exercised in favor

17 Randolph, 736 F. 2d 525,529 (9th Cir. 1984). The cour's discretion should

18 of

the strong policy favoring voluntar settlement of

litigation. Ahem v. Central Pacific Freight

19 Lines, 846 F. 2d 47,48 (9th Cir. 1988). This policy has "paricular force where ... a governent
20 actor committed to the protection of the public interest has pulled the laboring oar in constrcting
21 the proposed settlement." United States v. Cannons Eng'g Corp., 899 F.2d 79,84 (lst Cir. 1990);

22 see also United States v. SEPTA, 235 F. 3d 817, 822 (3rd Cir. 2000) Gudicial review ofa
23 settlement negotiated by the United States should be informed by the deference owed to "EP A's

24 expertise and to the law's policy of encouraging settlement"). Accordingly, the Ninth Circuit has
25 stated that "a district court reviewing a proposed consent decree 'must refrain from

26 second-guessing the Executive Branch.'" United States v. Montrose Chemical Corp. of

27 California, 50 F. 3d 741, 746 (9th Cir. 1995)(quoting Cannons Eng'g Corp. at 84); see also United
28
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1 States v. Bechtel Corp., 648 F. 2d 660,666 (9th Cir. 1981)(the balancing of

interests "must be

2 left, in the first instance, to the discretion of

the Attorney General").

3 The tral cour should enter the consent decree if it is "reasonable, fair, and consistent with
4 the puroses that (the statute) is intended to serve." Montrose Chemical Corp., 50 F. 3d at 747

5 (quoting Canons Eng'g Corp. at 85). In undertaking its review, a court is not required to make
6 the same in-depth analysis of a proposed settlement that it would be required to make in order to
7 enter a

judgment on the merits after trial: "(t)he trial cour in approving a settlement need not

8 inquire into the precise legal rights of the paries nor reach and resolve the merits of the claims or

9 controversy, but need only determine that the settlement is fair, adequate, reasonable and
1 0 appropriate under the paricular facts and that there has been valid consent by the concerned

11 parties." Citizens for a Better Env't v. Gorsuch, 718 F. 2d 1117, 1126 (D.C. Cir. 1983); accord
12 United States v. State of

Oregon, 913 F. 2d at 580.

13 A cour does not have the authority to modify a decree. Instead, it must either accept or
14 reject the decree as submitted. See Officers for Justice v. Civil Servo Comm'n, 688 F. 2d 615, 630

15 (9th Cir. 1982). The relevant standard "is not whether the settlement is one which the cour itself
16 might have fashioned, or considers as ideal, but whether the proposed decree is fair, reasonable,
17 and faithful to the objectives of

the governing statute." Canons Eng'g Corp., 899 F. 2d at 84.

18 B. The Consent Decree is Fair. Reasonable. and Furhers the Goals of CERCLA

19 In assessing the fairness of a proposed settlement, courts have considered several factors,
20 such as the strength of the plaintiffs case, the good faith efforts of the negotiators, the likely

21 complexity, length, and expense of the litigation, the amount of opposition to the settlement
22 among affected paries, and the opinion of counseI. Jones v. Nuclear Pharacy. Inc., 741 F. 2d 23 322,324 (10th Cir. 1984); United States v. BP Exploration & Oil Co., 167 F. Supp. 2d 1045,
24 1051-52 (N.D. Ind. 2001); Kelley v. Thomas Solvent Co., 717 F. Supp 507, 517 (W.D. Mich.

25 1989). In ascertaining whether a consent decree is reasonable, a court considers factors such as
26 the natue and extent of

the potential hazards, the availability and likelihood of alternatives to the

27 decree, whether the decree is technically adequate to accomplish the goal of cleaning up the

28 environment, and the extent to which the consent decree fuhers the statute's goals. BP

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1 Exploration & Oil Co., 167 F. Supp. 2d at 1053; see also United States v. Seymour Recycling
2 Corp., 554 F. Supp. 1334, 1339 (S.D. Indiana 1982). The underlying purpose of

the review is to

3 determine whether the decree adequately protects the public interest. BP Exploration & Oil Co.,
4 167 F. Supp. at 1049.

5 The Decree in this case addresses the hazards to the environment and public health. Under
6 the Decree, the Defendants will perform the remedy selected by EP A to address the releases and
7 threatened releases of

hazardous substances at the Site. The Defendants will also reimburse costs

8 incured by the United States, and will pay the United States' future oversight costs. CERCLA
9 authorizes the United States to secure "a prompt and effective response to problems of national

10 magnitude resulting fÌom hazardous waste disposaI." United States v. Reilly Tar & Chemical
11 Coi:., 546 F. Supp. 1100, 1112 (D. Minn. 1982). The proposed Decree serves CERCLA's goals
12 by ensurng remediation of the Site and providing for the reimbursement of

the United States'

13 response costs.
14

c.

Response to Comments

15 The United States received two sets of comments on the Decree: a comment letter fÌom
16 the City of Goodyear and a comment letter ftom the City of Avondale (collectively, the "Cities").
17 These letters are included as Attachment A to this memorandum. The City of Avondale and the
18 City of Goodyear are located in the vicinity of

the Site, and each city expresses the concern that its

19 drnkng water supply could be impacted by Site contamination. Both Cities generally support the
20 entry of the Decree!/, but they request certain assurances fÌom EP A that they be kept informed as

21 the work required pursuant to the Decree is performed. The EP A response to these comments is

22 included as Attachment B to this memorandum ( "EP A Response"). Both Cities seek assurances
23 that EP A recognizes that their water supply wells will potentially be impacted by Site

24 contamination, and that EP A will involve them in the decision-making if any such impact should
25 occur. EP A is aware of the vulnerabilities associated with the water supplies in both cities, EP A

26
27 li "The City welcomes the completion and lodging of

the decree, and urges the United States to seek entry of the decree by the District Court." Goodyear letter, page 1. "Avondale does not 28 request that the consent deccree must be modified ...." Avondale letter, page 3.
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1 Response at 2, and assures the Cities that if any well should be contaminated it wil solicit
2 comments ftom the subject well owner regarding the alternatives being considered prior to
3 approving and finalizing any action. EP A Response at 3. In their comment letters, the

Cities have

4 also requested that they receive certain information ftom EP A, and EP A has committed to

5 providing this information. EP A has also committed that it will request that the Defendants
6 provide certain information to the Cities.61

7 III. CONCLUSION
8 For the reasons stated above, this Motion to Enter should be granted and the Parial

9 Consent Decree entered as a final judgment resolving this matter.
10
11 Dated: June 20, 2006
Respectfully submitted,

12
13

SUE ELLEN WOOLDRIGE
Assistant Attorney General Environment & Natural Resources Division

14
15

United States Deparent of Justice
16

17
18

~~y~
Trial Attorney .

Environmental Enforcement Section

United States Deparent of Justice

19

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21

22
23

61 See, e.g., EP A Response at 3 ("EP A wil continue, as it has in the past, to include the City

of Goodyear and the City of Avondale in decisions regarding the development of any response actions pertaining to that City's wells."); EP A Response at 4 ("EP A is in agreement that any well
owner should be informed when any well is identified as ' at-risk'. EP A will make a formal request to Crane Co. to include the well owner... in any relevant notifications that are made to EP A."); EP A Response at 4 ("EP A will request that Crane. Co. notify the appropriate City in the event that they become aware of any release or threatened release of a Waste Material that may pose an immediate
threat to the public or the environment ... ."); EP A Response at 4 ("EP A wil continue, as requested,

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25

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to include both Cities on (a distribution list for Site correspondence) and will make a formal request

to Crane Co. to similarly include the Cities on all correspondence associated with the Consent Decree's reporting requirements.")
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1

PAULK. CHATON
United States Attorney District of Arzona

2
3

RICHA PATRICK
4
5

Assistant United States Attorney

6 OF COUNSEL:

7 BETHAN DREYFUS
Assistant Regional Counsel
8 United States Environmental Protection Agency

Region IX - ORC-3
9 75 Hawthorne Street

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San Francisco, CA 94105

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