Free Memorandum - District Court of Arizona - Arizona

1 Andrew R. Sherwood, SBA #003855 ‘
QUARLES & BRADY STREICH LANG LLP
2 One Renaissance Square
Two North Central Avenue
3 Phoenix, Arizona 85004
(602) 229-5200
4 (Other counsel listed on signature block)
5 Attorneys for Plaintiffs Crane Co. and Unidynamics/Phoenix, Inc. I ‘
6 PAUL K. CHARLTON, United States Attorney ‘ _
RICHARD PATRICK, Assistant U.S. Attorney
7 Arizona State Bar No. 05148
Two Renaissance Square
8 40 North Central Avenue, Suite 1200
Phoenix, Arizona 85004-4408 g
9 (Other counsel listed on signature block)
- 10 Attorneys for Defendant United States Of America g
11 UNITED STATES DISTRICT COURT I
DISTRICT OF ARIZONA
12 .
. 13 Crane Co., etal., ) l l
)
14 Plaintiff(s), ) CIV—03-2226-PHX-ROS
. . ) CIV-04-1400-PHX-ROS
15 v. ) (Consolidated)
) .
16 United States of America, )
) MEMORANDUM OF LAW IN SUPPORT
17 Defendant. ) OF THE PARTIES’ JOINT MOTION TO
) ENTER CONSENT DECREE
_ 18 )
A 19 I. BACKGROUND A
. 20 A. The Complaint
_ 21 On November 13, 2003, Plaintiffs Crane Co. ("Crane") and Unidynamics/Phoenix, Inc.
22 ("Unidynamics") filed a complaint against the United States of America (the "United States’)
23 pursuant to Section 113 of the Comprehensive Environmental Response, Compensation, and
24 Liability Act ("CERCLA"), 42 U.S.C. § 9613. Among other things, Plaintiffs sought contribution
A 25 from the United States for its equitable share of response costs that Plaintiffs have incurred or may
26 incur in connection with the releases and threatened releases of hazardous substances at P1aintiffs’
27 facility in Goodyear, Arizona (the "Contribution Claims"). By order of the Court, Plaintiffs’
28 Contribution Claims were consolidated with the United States' July 8, 2004 complaint, on behalf ‘
of the Administrator of the United States Environmental Protection Agency ("EPA"), against 5
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~ 1 Crane and Unidynamics pursuant to Sections 106 and 107 of CERCLA, 42 U.S.C. §§ 9606 and
2 9607 (the "Enforcement Claims"). The Contribution and Enforcement actions have proceeded
3 under the above consolidated caption. _
4 Pursuant to the Court’s directives, the parties have taken informal discovery regarding the
5 Contribution Claims and have been engaged in both non-binding mediation and direct settlement
6 negotiations since September 2005. During the past year, the parties also separately engaged in
l 7 negotiations directed to resolving the Enforcement Claims and reached agreement as to settlement
8 terms in April 2006. On Jruie 27, 2006, the Court entered a Partial Consent Decree resolving the
9 Enforcement Claims. The parties now have negotiated a settlement of the Contribution Claims, 7
10 which is embodied in the Consent Decree (the "Decree") attached to the joint motion. If entered, p
11 the Decree will effectuate the parties’ settlement of the Contribution Claims and will conclude A
12 this entire consolidated matter. 1
13 B. The Proposed Consent Decree _
14 The Decree provides, inter alia, that the United States will settle its alleged CERCLA
l 15 liability at the former Unidynamics site, with appropriate releases, indemnification, and
16 contribution protection, for $4.925 million for past response costs and an agreement to pay 21%
l 17 of Plaintiffs’ future response costs (as defined in the Decree).
18 As elaborated below, the proposed Decree is fair, reasonable, and consistent with the
19 purposes of CERCLA and thus the parties jointly request that the Court enter the Decree in order
20 to effectuate a final resolution of this matter.
21 II. THE CONSENT DECREE IS FAIR, REASONABLE, AND IN THE
PUBLIC INTEREST
22 Approval of a proposed consent decree is committed to the informed discretion of the
23 district court. United States v. Oregon, 913 F. 2d 576, 580(9th Cir. 1990). The court's discretion
24 should be exercised consistent with the strong policy favoring voluntary settlement of CERCLA
25 litigation. Ahem v. Central Pacific Freight Lines, 846 F. 2d 47, 48 (9th Cir. 1988); Arizona v.
26 Motorola, Inc., 139 F.R.D. 141, 147-48 (D. Ariz. 1991) (citing United States v. Cannons Eng'g
ig gg, 899 F.2d 79, 84-85 (lst Cir. 1990)); g @ generally United States v. SEPTA, 235 F. 3d
- 2 - E
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1 817, 822 (3rd Cir. 2000) (judicial review of a settlement negotiated by the United States should be
2 deferential). A court does not have the authority to modify a proposed decree, but must accept or
3 reject the decree as submitted. S-gg United States v. Crane Co., CIV-04-1400-PHX-ROS, Order
4 dated June 27, 2006, at 2 (citing Officers for Justice v. Civil Serv. Comm'n, 688 F. 2d 615, 630
5 (9th Cir. 1982)). The relevant standard "is not whether the settlement is one which the court itself
6 might have fashioned, or considers as ideal, but whether the proposed decree is fair, reasonable,
7 and faithful to the objectives of the goveming statute." Cannons, 899 F. 2d at 84; ge; @
g 8 Motorola, 139 F.R.D. at 147-48 (the task is to determine only whether a settlement represents a
9 "reasonable compr0mise,?’ bearing in mind that the law favors voluntary CERCLA settlements). 8
V 10 Under these goveming legal standards, the parties respectfully submit that the Decree is g
11 fair, reasonable, and in the public interest. Based on the discovery taken in this case, the parties 8
12 are well aware of the salient facts as well as the respective strengths and weaknesses of each
13 other’s claims and defenses. With the assistance of a neutral mediator appointed under the U
· 14 auspices of the Cotut, the parties have engaged in arm’s-length negotiations through experienced
. 15 counsel for several months and as a result the parties have reached a mutually acceptable
16 compromise of the Contribution Claims. @ @3% 913 F. 2d at 581 (decrees resulting from
17 good faith, arm’s-length negotiations are "presumptively valid"). The proposed settlement avoids
18 potentially lengthy, complex, and costly litigation, including a long tiial and possible appeal, and
19 facilitates a prompt and effective response to the environmental issues at the Site. Consistent with
A 20 CERCLA’s goals, the Decree encourages Plaintiffs to continue with the remediation of the Site by
21 providing for substantial payments by the United States to reimburse Plaintiffs for a share of their
22 past and future response costs. E 235 F .3d at 823-24 `(concluding that "rational l
23 estimates" of alleged liability are sufficient to establish the substantive fairness of a decree).
24 Accordingly, the Decree secures a public benefit by addressing the enviromnental issues at the_
25 Site in an appropriate fashion. See generally Motorola, 139 F.R.D. at 147-48 (noting that
26 continuing CERCLA litigation diverts time and money from cleanup and restoration).
27 I .
I 28 A _
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1 III. CONCLUSION . ·
2 For the reasons stated above, the Court should grant the parties’ joint motion and enter the
· 3 Consent Decree as a final judgment in this consolidated matter.
4 · Respectfully submitted, ‘ .
5 QUARLES ,& BRADY STREICH LANG LLP SUE ELLEN WOOLDRIDGE,
ASSISTANT ATTORNEY GENERAL
6 Andrew R. Sherwood, SBA #003855 ` »
Nicole France Stanton, SBA #020452 C1 S Q
7 Edward A. Salanga, SBA #020654 Michael C. Augustini, Trial Attorney
Two North Central Avenue Paul D. Tanaka, Trial Attorney
8 One Renaissance Square Environmental Defense Section
Phoenix, Arizona 85004 Environmental and Natural Res. Div
9 602.229.5200 United States Department of Justice 7
P.O. Box 23986
10 KIRKPATRICK & LOCKHART NTCHOLSON Washington, D.C. 20026-3986
GRAHAM LLP 202.616.6519 i
1 1 _
12 7***1 A »Q‘&"""‘*/ (jj /°‘”·""l*· MW PAUL K. CHARLTON,
Richard W. Hosking (admit ed pro hac vice) UNITED STATES ATTORNEY
13 Paul K. Stockman (admitted pro hac vice) `
Carl D. Hill (admitted pro hac vice) Richard G. Patrick
. 14 Henry W. Oliver Building Assistant United States Attorney -
- 535 Smithfield Street Two Renaissance Square
15 Pittsburgh, Pennsylvania 15222 40 North Central, Suit 1200
412.355.6500 Phoenix, AZ 85004-4408
1 6
Attorneys for Defendant United States of
1 7 1 America
Attorneys for Plaintiffs Crane Co. and
18 Unidynamics/Phoenix, Inc. A
19 .
20 _ -
21 Dated: July 26, 2006 A ·
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27 · (
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