United States District Court, D. Arizona
K. Jorgenson United States District Judge
before the Court is the State of Arizona's Motion to
Enter (Doc. 275). The State asserts that, consistent with the
Ninth Circuit's ruling in State of Arizona v. City of
Tucson et al., 761 F.3d 1005 (9th Cir. 2014), its Motion
to Enter, along with the State's prior Motion to Enter
Consent Decrees (Doc. 109), the State's Supplement to its
Motion to Enter Consent Decrees (Doc. 171), and the Affidavit
of Ana Vargas (Doc. 171-1) provides sufficient information
for the Court to find that the Consent Decrees are
substantively and procedurally fair, reasonable, and
consistent with the goals of the Comprehensive Environmental
Response, Compensation, and Liability Act
("CERCLA"). No objection to the proposed consent
decrees has been filed.
of Consent Decrees
inquiry regarding whether to approve the consent decrees is
whether the proposed settlements are procedurally and
substantively fair, reasonable, in the public interest, and
are consistent with the polices of CERCLA. State of
Arizona v. Nucor Corp., 825 F.Supp. 1452 (D.Ariz. 1992),
aff'd on other grounds, 66 F.3d 213 (9th Cir.
1995), United States v. Montrose Chemical Corp. of
Calif., 50 F.3d 741 (9th Cir. 1995). "[A] party who
has resolved its CERCLA liability through a judicially
approved consent decree ‘shall not be liable [to other
responsible parties] for claims for contribution regarding
matters addressed in the settlement.'" State of
Arizona v. City of Tucson, 761 F.3d at 1011 (quoting 42
U.S.C. § 9613(f)(2)). In making a determination as to
whether the approval of a consent decree is appropriate, a
court is to give deference to the government's evaluation
of the proposal. Nucor, 825 F.Supp. at 1456,
citing United States v. Cannons Engineering Corp.,
899 F.2d 79, 84-86 (1st Cir. 1990). However, "where a
state, as opposed to the federal government, is a party to a
proposed CERCLA consent decree, " the deference provided
to the state is not to the same degree as would be afforded
the federal government. Arizona v. City of Tucson,
761 F.3d at 1014. Indeed, "[t]he true measure of the
deference due depends on the persuasive power of the
agency's proposal and rationale." Montrose,
50 F.3d at 746, quoting Cannons, 899 F.2d at 84.
Further, "[t]here is a fundamental difference in the
review of the sufficiency of evidence to support a settlement
and the situation where there is no evidence at all on an
important point." Montrose, 50 F.3d at 746.
courts have an obligation to "scrutinize" the
settlement process to determine whether the proposed decrees
are both procedurally and substantially fair,
Montrose, 50 F.3d at 747, if the district court
finds that a state environmental agency has expertise
concerning the cleanup of a site, the court may afford
"some deference" to the state's judgment
concerning the environmental issues underlying the CERCLA
consent decrees. Arizona v. City of Tucson, 761 F.3d
at 1014. However, a district court may not defer to the
state's judgment that an agreement satisfies
of the State of Arizona - Department of Environmental
1986, the Arizona Legislature established the Arizona
Department of Environmental Quality ("ADEQ") in
response to growing concerns over groundwater quality. The
ADEQ is the state regulatory agency charged with
responsibility to investigate groundwater contamination and
enforce Arizona's environmental laws." Roosevelt
Irr. Dist. v. Salt River Project Agr. Imp. & Power
Dist., 39 F.Supp. 3d 1059, 1062 (D. Ariz. 2014)
(citation omitted). Indeed, the State asserts the ADEQ
responsibilities include investigating hazardous sites under
Water Quality Assurance Revolving Fund ("WQARF")
program. A.R.S. §§281-298 and CERCLA, 42 U.S.C.
§§ 9601-9675. Further, the State asserts that,
during the past thirty years, ADEQ has entered into over
sixty seven (67) other CERCLA settlements in the Arizona
District Court, all of which this Court approved.
history, including judicially approved settlements, exhibits
its specialized knowledge and expertise in cleaning up
contaminated sites. See generally State v. Arizona v.
Motorola, Inc., 805 F.Supp. 748, 754 (D.Ariz. 1992). The
Court, therefore, will afford some deference to ADEQ's
judgment concerning the environmental issues underlying the
determine procedural fairness, courts "must look to the
negotiation process and ‘attempt to gauge its candor,
openness and bargaining balance.'" Nucor,
825 F.Supp. at 1456, citing Cannons, 899 F.2d at 84.
In considering this, the Court recognizes that, "under
CERCLA, the right to draw fine lines, and to structure order
and pace of settlement negotiations is an agency
prerogative." U.S. v. Grand Rapids, 166
F.Supp.2d 1213, 1221 (W.D. Mich. 2000), citing
Cannons, 899 F.2d at 93. The State has asserted that, at
the request of several anticipated adverse parties
("AAPs"), the State prepared early settlement
offers for all of the AAPs based on the information in its
files at that time.
State, in its original Motion to Enter Consent Decree, cited
United States v. Davis, 261 F.3d 1, 23 (1st Cir.
2001), quoting United States v. Comunidades Unidas Contra
La Contaminacion, 204 F.3d 275, 281 (1st Cir. 2000), for
the assertion that "[t]here is no reason to doubt that
the consent decrees were the result of ‘arms'
length, good faith bargaining' between sophisticated
parties." Motion (Doc. 109), p. 10. Here, the State
asserts the Consent Decrees result from lengthy negotiations
between ADEQ and the Defendants. Additionally, the State has
openly explained the process of reaching the settlement
amounts in this litigation. Further, in this litigation,
interested entities have provided input and have engaged in
settlement discussions. Additionally, the Court considers
that interested entities were provided access to the
State's public records in conjunction with its Petition
to Perpetuate Testimony of Mr. Blankinship pursuant to
Fed.R.Civ.P. 27, received the documentation relied upon by
the State for its settlement offers, and the State described
facts and methodology in responding to public comments.
See e.g. State's Brief (Doc. 157), p. 11.
light of CERCLA and WQARF's encouragement of early
settlements, see e.g. United States v. Montrose Chemical
Corp. of California, 827 F.Supp. 1453, 1458 (C.D.Cal.
1993), the Court finds settlement agreements between the
State and the settling parties were the result of procedural
Fairness, Reasonableness, and Public Interest
fairness "concerns the issues of corrective justice and
accountability." Nucor, 825 F.Supp. at 1458.
Indeed, "a party should bear the costs of the harm for
which it is legally responsible." Cannons, 899
F.2d at 87. In determining the reasonableness of a
settlement, the court should consider the "efficacy of
the settlement in compensating the public for actual and
anticipated remedial and response costs and the relative
strength of the parties' litigating."
Nucor, 825 F.Supp. at 1464. The settlement terms
must be based on an acceptable measure of comparative fault
that apportions liability according to a rational, if
necessarily imprecise estimate of how much harm the settling
party has caused. Nucor, 825 F.Supp. at 1458-59;
Cannons, 899 F.2d at 87. The State's chosen
measure of comparative fault should be upheld unless it ...