USA v. The Coeur d'Alenes Company

Filing

FILED OPINION (A. WALLACE TASHIMA, MARY H. MURGUIA and CORMAC J. CARNEY) AFFIRMED. Judge: MHM Authoring, FILED AND ENTERED JUDGMENT. [9241429]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
FEDERAL RESOURCES CORPORATION,
Intervenor-Appellant,

No. 12-36065
D.C. No.
2:11-cv-00633EJL

v.
OPINION
THE COEUR D’ALENES COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted
July 10, 2014—Seattle, Washington
Filed September 16, 2014
Before: A. Wallace Tashima and Mary H. Murguia,
Circuit Judges, and Cormac J. Carney, District Judge.*
Opinion by Judge Murguia

*

The Honorable Cormac J. Carney, United States District Judge for the
Central District of California, sitting by designation.

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UNITED STATES V. FRC
SUMMARY**

CERCLA
The panel affirmed the district court’s order granting the
United States’ motion to enter a consent decree concerning
payment of the costs of hazardous waste clean-up efforts at
the Conjecture Mine Site in Bonner County, Idaho.
The consent decree was made pursuant to the terms of the
Comprehensive Environmental Response, Compensation, and
Liability Act (“CERCLA”), which authorizes the United
States to settle with a potentially responsible party for an
amount less than that potentially responsible party’s
proportionate share of the cost to clean up a polluted site if it
has a limited ability to pay. The Coeur d’Alenes Company
entered into such a settlement with the government, and the
district court approved it over the objections of intervenor
Federal Resources Corporation. The district court concluded
that the consent decree was procedurally and substantively
fair, reasonable, and consistent with CERCLA.
The panel held that the intervenor failed to establish that
the district court abused its discretion by forgoing a
comparative fault analysis that it deemed irrelevant to the
specific, permissible factors underlying the terms of the
consent decree. The panel further held that the district court’s
conclusion - that the record showed that the United States
appropriately considered the financial health of the Coeur
d’Alene Company when concluding that the proposed
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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settlement represented the maximum amount of money it
could contribute to the cleanup costs - was well supported.

COUNSEL
Katherine Lynn Felton (argued), and James P. Murphy,
Murphy Armstrong, & Felton, Seattle, Washington; Stanley
J. Tharp, Eberle, Berlin, Kading, Turnbow & McKlveen,
Chartered, Boise, Idaho, for Intervenor-Appellant.
Peter Krzywicki (argued) and Paul Gormley, United States
Department of Justice, Environmental and Natural Resources
Division, Washington, D.C., for Plaintiff-Appellee.
W. Christopher Pooser (argued), and Kevin J. Beaton, Stoel
Rives, Boise, Idaho, for Defendant-Appellee.

OPINION
MURGUIA, Circuit Judge:
This case concerns the district court’s obligations in
reviewing a settlement made pursuant to the provisions of the
Comprehensive Environmental Response, Compensation, and
Liability Act (“CERCLA”), 42 U.S.C. §§ 9601–75, that
authorize the United States to settle with a potentially
responsible party (“PRP”) for an amount less than that PRP’s
proportionate share of the cost to clean up a polluted site if it
has a limited ability to pay. See 42 U.S.C. §§ 9622(e)(3)(A),
(f)(6)(B). The Coeur d’Alenes Company (“CDA”) entered
into such a settlement with the government, and the district
court approved it over the objections of intervenor Federal

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Resources Corporation (“FRC”) that the district court was
required to conduct a comparative fault analysis and to
scrutinize more closely the government’s assessment of
CDA’s ability to pay. We affirm.
I
In 2011, the United States filed lawsuits against FRC and
CDA, among other PRPs, in the District of Idaho to recover
the cost of hazardous waste clean-up efforts at the Conjecture
Mine Site in Bonner County, Idaho (the “Site”). The
government proceeded against both parties under CERCLA,
which “imposes strict liability on certain classes of parties
who are potentially responsible for a site’s contamination.”
Arizona v. City of Tucson, No. 12-15691, 2014 WL 3765569,
at *3 (9th Cir. Aug. 1, 2014) (citing Burlington N. & Santa Fe
Ry. Co. v. United States, 556 U.S. 599, 615 (2009); Anderson
Bros. v. St. Paul Fire & Marine Ins. Co., 729 F.3d 923, 929
(9th Cir. 2013)). “CERCLA liability is generally joint and
several,” although a party held liable under CERCLA may
usually seek contribution from other PRPs held liable for the
cost to remediate the same site. Id.; see also 42 U.S.C.
§ 9613.
“Congress sought through CERCLA . . . to
encourage settlements that would reduce the
inefficient expenditure of public funds on
lengthy litigation.” Chubb Custom Ins. Co. v.
Space Sys./Loral, Inc., 710 F.3d 946, 971 (9th
Cir. 2013). Consistent with this objective,
Section 113(f)(2) [of CERCLA] provides that
a party who has resolved its CERCLA
liability through a judicially approved consent
decree “shall not be liable [to other

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responsible parties] for claims for contribution
regarding matters addressed in the
settlement.” 42 U.S.C. § 9613(f)(2). This
statutory framework contemplates that
potentially responsible parties who do not
enter into early settlement agreements may
ultimately bear a disproportionate share of the
CERCLA liability. For this reason, potentially
responsible parties who do not enter into such
agreements have standing to intervene in
CERCLA actions to oppose the entry of
CERCLA consent decrees. United States v.
Aerojet Gen. Corp., 606 F.3d 1142, 1150–53
(9th Cir. 2010).
City of Tucson, 2014 WL 3765569, at *4 (second alteration
in original).
In March 2011, the United States sued FRC to recover
costs associated with cleaning up the Site. In December of
that year, after more than a year of negotiation, the United
States also brought an action against CDA to recover costs
associated with the clean-up of the Site. However,
simultaneous with its complaint against CDA, the
government lodged a proposed consent decree (the “Consent
Decree”), notice of which was published in the Federal
Register one week later. See 76 Fed. Reg. 79,710 (Dec. 22,
2011).
Under the terms of the Consent Decree, CDA would be
obligated to pay a total of $350,000, plus interest. The
government did not arrive at this figure by taking the total
estimated cost of cleaning up the Site and multiplying that by
the fraction of liability reasonably attributable to CDA;

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rather, $350,000 was the amount the government believed
CDA would be able to pay without risking the company’s
ongoing viability. The government had arrived at the figure
with the assistance of a financial analyst, who conducted a
review of CDA’s records in accordance with the
Environmental Protection Agency’s General Policy on
Superfund Ability to Pay Determinations.
The limitation of CERCLA liability based on a party’s
ability to pay is contemplated by the statute. See 42 U.S.C.
§ 9622(e)(3)(A) (“[G]uidelines for preparing nonbinding
preliminary allocations of responsibility . . . may include . . .
ability to pay.”). Courts have routinely recognized the
important policy considerations served by so-called “ability
to pay” settlements. For example, in United States v. Bay
Area Battery, the district court observed that
[w]hile certain PRPs have deep pockets and
can afford to shoulder their full share of
liability for a site’s cleanup, other PRPs
simply do not have the resources to pay their
share. . . .
When negotiating with PRPs who are
small businesses or individuals of modest
means, the Government seeks to avoid
settlements that will force the businesses and
individuals into bankruptcy or require them to
sell off major assets. Instead, the Government
requires such PRPs to pay an amount that will
allow businesses to continue operating and
will not jeopardize the modest lifestyles of
individual parties. In this fashion, the

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Government will recover some of its past
costs while the PRPs are spared financial ruin.
895 F. Supp. 1524, 1529–30 (N.D. Fla. 1995); see also
United States v. Weiss, No. 11-CV-02244-RM-MJW, 2013
WL 5937912, at *3–4 (D. Colo. Nov. 6, 2013); United States
v. Hecla Ltd., No. 96-0122-N-EJL, 2011 WL 3962227, at *3
(D. Idaho Sept. 8, 2011); United States v. Brook Vill. Assocs.,
No. CIV.A. 05-195, 2006 WL 3227769, at *6–7 (D.R.I. Nov.
6, 2006).
On February 2, 2012, during the comment period for the
Consent Decree, FRC objected on the basis that the amount
of CDA’s liability was based on its ability to pay rather than
on its degree of fault relative to other PRPs for the pollution
at the Site; FRC also questioned the thoroughness of the
government’s investigation into CDA’s financial situation.
FRC’s desire to object is understandable: because CERCLA
liability is generally joint and several, see 42 U.S.C.
§ 9607(a), and because settlors like CDA are immune to
contribution claims brought by fellow PRPs, see id.
§ 9613(f)(2), a reduction in CDA’s liability could have the
direct effect of increasing FRC’s own liability.
After the government moved for entry of the Consent
Decree, the district court permitted FRC to intervene in the
action against CDA. On October 25, 2012, FRC filed an
objection to the Consent Decree on largely the same grounds
as its objections during the comment period. However,
CDA’s objection as an intervenor went into greater detail in
alleging that the government failed to investigate the extent
of CDA’s financial resources. Specifically, FRC claimed that
CDA had liability insurance coverage relevant to the Site

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clean-up and that the government had failed to take this
coverage into account when assessing CDA’s ability to pay.
Rejecting FRC’s objections, on November 28, 2012, the
district court granted the United States’ motion to enter the
Consent Decree after concluding that it was procedurally and
substantively fair, reasonable, and consistent with CERCLA.
In its capacity as an intervenor, FRC appeals from the district
court’s order.
II
To approve a consent decree under CERCLA, a district
court must conclude that the agreement is procedurally and
substantively “fair, reasonable, and consistent with
CERCLA’s objectives.” United States v. Montrose Chem.
Corp. of Cal., 50 F.3d 741, 748 (9th Cir. 1995). When, as
here, the proposed consent decree is the result of negotiations
with the United States, “the approval of a CERCLA consent
decree ‘reaches the appellate level encased in a double layer
of swaddling.’” City of Tucson, 2014 WL 3765569, at * 5
(quoting Montrose, 50 F.3d at 746).
The first layer of swaddling requires the
district court to “refrain from second-guessing
the Executive” and to defer to the EPA’s
expertise. Montrose, 50 F.3d at 746. This is
so, because “considerable weight [is]
accorded to [a federal] executive department’s
construction of a statutory scheme it is
entrusted to administer. . . .” United States v.
Mead Corp., 533 U.S. 218, 227–28 (2001).
We then defer to the district court’s judgment
and review its approval of the proposed

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agreement for abuse of discretion. Montrose,
50 F.3d at 746.
Id. (some alterations in original).
FRC’s two arguments on appeal essentially track its
objections to the Consent Decree in the district court. First,
FRC argues that the district court abused its discretion by
failing to conduct a comparative fault analysis before
approving the Consent Decree, notwithstanding the fact that
the amount of CDA’s liability was based on its ability to pay,
rather than on its purported share of the fault for polluting the
Site. Second, FRC argues that the district court abused its
discretion by approving the Consent Decree in spite of
evidence that purportedly demonstrated that CDA had
relevant insurance coverage that the government had failed to
take into account in calculating CDA’s ability to pay. Neither
argument is persuasive.
III
FRC argues that the district court was required to analyze
the comparative fault of the parties in order to determine
whether the Consent Decree was substantively fair. It is true
that we require a district court to review a proposed consent
decree for the purpose of determining whether it is fair—not
only procedurally, but also substantively. See City of Tucson,
2014 WL 3765569, at *4. It is also true that, in cases where
a PRP’s liability has not been established based on the PRP’s
limited ability to pay, we have recognized that a finding of
substantive fairness ordinarily requires a district court to
find that the agreement is “based upon, and
roughly correlated with, some acceptable

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measure of comparative fault, apportioning
liability among the settling parties according
to rational (if necessarily imprecise) estimates
of how much harm each [potentially
responsible party] has done.”

Id. (quoting United States v. Charter Int’l Oil Co., 83 F.3d
510, 521 (1st Cir. 1996)).
Nevertheless, because the Consent Decree was based on
CDA’s ability to pay—and not on the entity’s actual share of
fault—it is unclear what effect, if any, a comparative fault
analysis would have had on the district court’s determination
that the settlement was substantively fair. We certainly see
no need to mandate that a district court conduct the analysis,
particularly given the considerable deference afforded to a
district court order approving a consent decree under
CERCLA. See Montrose, 50 F.3d at 746–47. CERCLA
expressly permits the government to take ability to pay into
account when fashioning a settlement with a PRP, see
42 U.S.C. §§ 9622(e)(3)(A), (f)(6)(B), and FRC has failed to
establish that the district court abused its discretion by
forgoing a comparative fault analysis that it deemed
irrelevant to the specific, permissible factors underlying the
terms of the Consent Decree. We do not foreclose the
possibility that a district court might conduct a comparative
fault analysis when evaluating a settlement that has been
proffered as having been reached on the basis of ability to
pay. However, we decline to cabin the district court’s
discretion to determine how best to evaluate the fairness of a
settlement in light of the specific circumstances at issue.
We understand FRC’s concern that it may be forced to
shoulder a greater portion of the cost to clean up the Site than

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it would have had the United States and CDA not entered into
a settlement based on CDA’s limited ability to pay. Indeed,
we recognize that FRC being held disproportionately liable is
a very likely outcome. However, such an outcome would not
be inconsistent with CERCLA, nor would it merely be an
unintended consequence of the statute. Rather, the potential
for disproportionate liability is an integral and purposeful
component of CERCLA. As the First Circuit has observed:
Congress explicitly created a statutory
framework that left nonsettlors at risk of
bearing a disproportionate amount of liability.
The statute immunizes settling parties from
liability for contribution and provides that
only the amount of the settlement—not the
pro rata share attributable to the settling
party—shall be subtracted from the liability of
the nonsettlors. This can prove to be a
substantial benefit to settling PRPs—and a
corresponding detriment to their more
recalcitrant counterparts.
Although such immunity creates a
palpable risk of disproportionate liability, that
is not to say that the device is forbidden. To
the exact contrary, Congress has made its will
explicit and the courts must defer.
Disproportionate liability, a technique which
promotes early settlements and deters
litigation for litigation’s sake, is an integral
part of the statutory plan.
United States v. Cannons Eng’g Corp., 899 F.2d 79, 91–92
(1st Cir. 1990).

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There is nothing remarkable about the prospect of FRC
being held disproportionately liable, and, absent another
reason that actually has some grounding in the statutory
provision at issue here, there is no reason for the district court
to spend its time quantifying precisely how disproportionately
FRC may be held liable.
IV
FRC also argues that the district court erred by failing to
consider the “substantial evidence” submitted by FRC
“indicating the existence of liability insurance.” FRC argues
that a predecessor entity of CDA had purchased liability
coverage that was in effect at the time the Site was polluted;
according to FRC, this insurance coverage increases CDA’s
effective ability to pay. FRC claims that it was “severely
prejudiced” by the district court’s refusal to take into account
the purported insurance coverage when considering whether
the Consent Decree was fairly based on CDA’s ability to pay.
We reject FRC’s speculative argument, as we see no
reason to reject the district court’s determination that “the
record shows that the Government appropriately considered
the financial health of the CDA Company and concluded that
the proposed settlement represents the maximum amount of
money it could contribute to the cleanup costs.” The district
court’s conclusion is well supported. The government
retained an expert financial analyst to evaluate CDA’s ability
to pay. That analyst reviewed numerous records in
accordance with EPA procedures for determining ability to
pay, and she explicitly stated that the information she
received “provided [her] with a sufficient basis to evaluate
[CDA’s] ability to pay.” CDA also retained an expert to
investigate the existence of any possible insurance that CDA

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might have but not know about. The expert did not find
evidence of any coverage, and CDA turned the results of the
investigation over to the government.
It is also not lost on us that, in the Consent Decree, CDA
certified to the district court that it had “fully disclosed any
information regarding the existence of any insurance policies
or indemnity agreements that may cover claims relating to
cleanup of the Site.” By the terms of the Consent Decree, if
CDA’s financial representations are subsequently determined
by the EPA to be false, CDA will lose its statutory protection
from contribution claims by other PRPs, including FRC.
Thus CDA had nothing apparent to gain by making any
misrepresentations about the availability of insurance
coverage.
The evidence FRC has offered in the record does not
appear conclusively to demonstrate the existence of relevant
insurance coverage. Rather, it suggests the possibility of
coverage based on a chain of association between CDA and
its predecessor entities; whether any coverage actually was
transferred to CDA is disputed. Further, while FRC points to
several documents from CDA’s predecessor that include a
line item expense for “liability insurance,” the government
argues in response that the record demonstrates that the
“liability insurance” at issue is actually workman
compensation insurance, and, moreover, that the relationship
between CDA and its predecessor did not pass liability
between the two entities – and, thus, did not pass any relevant
insurance coverage to CDA either.
For our purposes, FRC does not challenge CDA’s ability
to pay so much as it challenges the sufficiency of the
government’s investigation and of the district court’s review

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of the thoroughness of that investigation. For FRC to have
any success on its claim, it would have to demonstrate that
the district court abused its discretion by accepting the
sufficiency of an investigation conducted by the government
in accordance with its own established procedures, and it
would bear an extraordinarily high burden in demonstrating
such an abuse in light of the tremendous deference the district
court rightfully pays to the government’s determination that
a consent decree is fair and proper. See Montrose, 50 F.3d at
746–47.
“[A] district court abuses its discretion ‘when it makes an
error of law, when it rests its decision on clearly erroneous
findings of fact, or when we are left with a definite and firm
conviction that the district court committed a clear error of
judgment.’” Johnson v. Uribe, 700 F.3d 413, 424 (9th Cir.
2012) (quoting United States v. Ressam, 679 F.3d 1069, 1086
(9th Cir. 2012)). In light of the evidence the government
presented demonstrating that it adequately investigated
CDA’s ability to pay – including through insurance coverage
– and the double deference we pay to the district court’s order
approving the Consent Decree, we cannot conclude that the
district court’s acceptance of the government’s assessment of
CDA’s ability to pay amounts to a clear error of fact or of
judgment.
V
Because the district court did not abuse its discretion by
approving the Consent Decree, we AFFIRM.

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