STATE OF MAINE et al v. UNITED STATES OF AMERICA et al
Filing
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CONSENT DECREE. It is hereby ORDERED that any motion for attorney's fees shall be filed within the time specified in Local Rule 54.2 of this Court. By JUDGE JOHN A. WOODCOCK, JR. (jwr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
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THE STATE OF MAINE, through
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the MAINE DEPARTMENT OF
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ENVIRONMENTAL PROTECTION,
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Plaintiff,
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v.
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UNITED STATES OF AMERICA,
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Defendant.
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____________________________________)
Civil Action No. 1:16-cv-406-JAW
CONSENT DECREE
WHEREAS, Plaintiff the State of Maine (the “State”) filed the Complaint herein against
Defendant the United States of America (“United States”), alleging that the United States is a
potentially responsible party under the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (“CERCLA”), as amended, 42 U.S.C. § 9601 et seq., in connection with
the Portland Bangor Waste Oil site in Ellsworth, Maine (“Ellsworth PBWO Site”), and the
Portland Bangor Waste Oil site in Casco, Maine (“Casco PBWO Site”) (collectively the “Sites”)
as defined herein;
WHEREAS, the State alleges that the Maine Department of Environmental Protection
(“MDEP”), an agency of the State, incurred and will incur response costs within the meaning of
CERCLA with respect to the Sites and seeks to recover response costs from the United States in
this action;
WHEREAS, the State and the United States agree that settlement of this case is in the
public interest, that settlement of this matter will avoid the costs and uncertainties of further
litigation, and that entry of this Decree is the most appropriate means of resolving the claims
against the United States in this case;
WHEREAS, this Decree is intended to constitute a complete and final settlement of the
State’s claims set forth in the Complaint regarding the Sites; and
WHEREAS, the Court finds that this Decree is a reasonable and fair settlement of the
claims in this case, and that this Decree adequately protects the public interest.
THEREFORE, before the taking of any testimony upon the pleadings, without further
adjudication of any issue of fact or law, and upon consent of the parties hereto by their authorized
representatives, it is hereby ORDERED, ADJUDGED and DECREED as follows:
I. JURISDICTION AND VENUE
1.
This Court has subject matter jurisdiction over claims in the Complaint, pursuant
to 28 U.S.C. § 1331 (Federal Question), and 42 U.S.C. §§ 9607 and 9613(b) (CERCLA). This
Court has personal jurisdiction over the Parties.
2.
Venue is proper in the District of Maine pursuant to 42 U.S.C. § 9613(b)
(CERCLA), and 28 U.S.C. § 1391(b) and (c), because the United States conducts business in this
District, the Sites are located in this District, the alleged releases occurred in this District, and the
causes of action alleged in this matter arose in this District.
II. PARTIES BOUND
3.
The obligations of this Decree shall apply to and be binding upon the United States
and the State, including their respective officers, agents, and employees.
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III. DEFINITIONS
4.
Unless otherwise expressly provided herein, terms used in this Decree which are
defined in CERCLA or in regulations promulgated under CERCLA shall have the meaning
assigned to them in CERCLA or in such regulations. Whenever terms listed below are used in
this Decree, the following definitions shall apply:
a.
“Effective Date” shall mean the date that this Decree is entered by the
b.
“Response Costs” shall mean all costs of “response” as that term is defined
Court.
in Section 101(25) of CERCLA, 42 U.S.C. § 9601(25), incurred by the State for response actions
conducted at or in connection with the Sites, as defined herein.
c.
“Natural Resource” or “Natural Resources” shall mean land, fish, wildlife,
biota, air, water, ground water, drinking water supplies, and other such resources, belonging to,
managed by, held in trust by, appertaining to, or otherwise controlled by the State of Maine at the
Sites.
d.
“Natural Resource Damages” shall mean damages recoverable by the State
of Maine on behalf of the public under Section 107 of CERCLA, 42 U.S.C. § 9607, for injury to,
destruction of, loss of use of, or impairment of Natural Resources, resulting from the release or
discharge of hazardous substances at the Site, including, but not limited to: (i) the costs of
assessing such injury, destruction, loss or impairment arising from or relating to such release of
hazardous substances; (ii) the costs of restoration, rehabilitation, or replacement of injured or lost
Natural Resources or of acquisition of equivalent Natural Resources; (iii) the costs of planning
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such restoration activities; (iv) compensation for injury, destruction, loss, loss of use, or
impairment of Natural Resources; and (v) each of the categories of recoverable damages
described in 43 C.F.R. § 11.15.
c.
“Casco PBWO Site” shall mean the real property, encompassing
approximately 4.58 acres, located on Tenny Hill Road, generally depicted in Town of Casco tax
records as Lot 12A-1 on Tax Map 5, and fully described, and recorded in the York County
Registry of Deeds in Plan Book 7410, Page 161.
d.
“Ellsworth PBWO Site” shall mean the real property, encompassing
approximately 0.92 acres, located at 318 Bangor Road in Ellsworth, Hancock County, Maine,
generally depicted in Town of Ellsworth tax records as Lot 3 on Tax Map 49, and fully described
and recorded in the York County Registry of Deeds in Plan Book 3123, Page 123.
e.
“State of Maine” or the “State” means the State of Maine and all of its
departments, agencies, and instrumentalities, by and through the Office of the Maine Attorney
General.
f.
“United States” means the United States of America and all of its
departments, agencies, and instrumentalities.
IV. SCOPE AND EFFECT OF CONSENT DECREE
5.
This Decree was negotiated and executed by the State and the United States in
good faith and at arm’s length and is a fair and equitable compromise of claims, which were
vigorously contested.
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6.
This Decree shall constitute a full and final resolution between the State and the
United States with respect to the claims asserted in the Complaint.
7.
This Decree is not to be interpreted as an admission on the part of any Party of any
issue of fact or law, or liability or wrongdoing, and it is expressly understood that no Party, by
agreeing to this Decree, admits liability of any sort or any other issue of fact or law.
V. REIMBURSEMENT OF RESPONSE COSTS
8.
Subject to paragraph 10, as soon as reasonably practicable after the Effective Date,
the United States will pay $413,433.00 to the State. Payment shall be made by Electronic Funds
Transfer in accordance with instructions provided by the State, payable to the Maine Uncontrolled
Site Fund that is administered by:
Maine Department of Environmental Protection
Bureau of Hazardous Materials and Waste Management
Division of Remediation
State House 17
Augusta, Maine 04333-0017
9.
If such payment is not made in full within one-hundred and twenty (120) days after
either the Effective Date of this Agreement, or the date upon which the State provides the United
States with payment instructions, whichever is later, then interest on the unpaid balance shall be
paid commencing on the 121st day after such later date. Interest shall accrue at the rate specified
for interest on investments of the Hazardous Substance Superfund established under subchapter A
of chapter 98 of Title 26 of the United States Code.
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10.
The payment by the United States in paragraph 8 is subject to the availability of
funds appropriated for such purpose. No provision of this Consent Decree shall be interpreted as
or constitute a commitment or requirement that the United States obligate or pay funds in
contravention of the Anti-Deficiency Act, 31 U.S.C. §§ 1341-42 and 1511-19, or any other
applicable federal law.
VI. COVENANT NOT TO SUE
11.
In consideration of the payment in paragraph 8 of this Decree, and except as
otherwise specifically provided in this Decree, the State covenants not to sue or to take
administrative action against the United States pursuant to Section 107 or Section 113 of
CERCLA, 42 U.S.C. §§ 9607, 9613, or any other applicable State or federal laws, including
common law, with respect to Response Costs or Natural Resource Damages. This covenant
extends only to the United States and does not extend to any other person.
12.
In consideration of the receipt of the payment in Paragraph 8 of this Decree, and
subject to the limitations in Paragraph 13, the State hereby discharges, and covenants and agrees
not to assert (by way of the commencement of an action, the joinder of the United States in an
existing action, or in any other fashion) any and all claims, causes of action, suits or demands of
any kind whatsoever in law or in equity which it may have had, or hereafter have, including, but
not limited to, claims under CERCLA sections 107 and 113, against the United States for
Response Costs and Natural Resource Damages, including but not limited to Response Costs and
Natural Resource Damages associated with off-site contamination that may be emanating from
the Sites.
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13.
The signing of this Decree and each Party’s consent to comply shall not limit or
otherwise preclude MDEP from taking additional action pursuant to the powers granted to it
under State and/or federal environmental laws and regulations: (a) to address violations of such
laws or regulations not otherwise addressed by this Decree; or (b) to reduce or eliminate risks to
public health or the environment at the Site that were not known to MDEP at the time of approval
of this Decree.
14.
The United States hereby covenants not to sue the State for Response Costs and
Natural Resource Damages at the Sites, except that the United States specifically reserves its right
to assert against the State any claims or actions regarding the Sites brought on behalf of the
United States Environmental Protection Agency, any federal lead agency under the National
Contingency Plan, or a federal natural resource trustee. Notwithstanding any other provision of
this Decree, the United States also retains all authority and reserves all rights to take any and all
response actions authorized by law at the Sites.
VII. EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION
15.
Nothing in this Decree shall be construed to create any rights in, or grant any cause
of action to, any person not a Party to this Decree. The preceding sentence shall not be construed
to waive or nullify any rights that any person not a signatory to this decree may have under
applicable law. Each of the Parties expressly reserves any and all rights (including, but not
limited to, any right to contribution), defenses, claims, demands, and causes of action which each
Party may have with respect to any matter, transaction, or occurrence relating in any way to the
Sites against any person not a Party hereto.
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16.
The Parties agree that the United States is paying its fair share of Response Costs
and Natural Resource Damages, and the United States does not anticipate bring claims against
third parties relating to the Sites.
17.
The Parties agree, and by entering this Decree this Court finds, that this settlement
constitutes a judicially approved settlement for purposes of Section 113(f)(2) of CERCLA, 42
U.S.C. § 9613(f)(2), and that the United States is entitled, as of the Effective Date, to protection
from contribution actions or claims as provided by CERCLA Section 113(f)(2), 42 U.S.C. §
9613(f)(2), or as may be otherwise provided by law, for Matters Addressed in this Consent
Decree. “Matters Addressed” means all Response Costs and Natural Resource Damages.
18.
The Parties agree to join in and/or support, as may be appropriate, such legal
proceedings as necessary to secure the Court’s approval and entry of this Decree and to secure
and maintain the contribution protection contemplated in this Decree. Nothing in this Decree is
intended to be construed to mean that the State would provide indemnification to the United
States in the event of a claim for contribution.
VIII. OTHER CLAIMS
19.
This Decree does not extend to or inure to the benefit of any party, person, or
entity, other than the State and the United States, and nothing in this Decree shall be construed to
make any other party, person, or entity a third-party beneficiary of this Decree. Furthermore,
nothing in this Decree is intended to be, nor shall be construed as, a waiver, release, or covenant
not to sue for any claim or cause of action, administrative or judicial, in law or in equity, which
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the United States or the State may have against any person, firm, partnership, trust, corporation or
any other entity that is not a party to this Decree.
20.
The State certifies, based on its knowledge and belief, that as of the Effective Date
of this Agreement, the State has not been reimbursed for the portion of the Response Costs and
Natural Resource Damages for which it will receive reimbursement or payment by the United
States under this Decree. The State shall not seek or accept reimbursement or payment for the
Response Costs and Natural Resource Damages paid pursuant to this Decree from any other
entity or through future federal government contracts, grants or other agreements.
IX. RETENTION OF JURISDICTION
21.
This Court shall retain jurisdiction over this matter for the purpose of interpreting
and enforcing the terms of this Decree.
X. COSTS OF SUIT
22.
Subject to paragraph 8, each party to this Decree shall bear its own costs and
attorneys’ fees in this action.
XI. SIGNATORIES/SERVICE
23.
Each of the undersigned certifies that he or she is fully authorized to enter into the
terms and conditions of this Decree and to execute and legally bind the Party he or she represents
to this document.
24.
This Decree may be signed in counterparts, and its validity shall not be challenged
on that basis.
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IT IS SO ORDERED.
Dated and entered this 18th day of August, 2016.
/s/John A. Woodcock, Jr.____
JOHN A. WOODCOCK, JR.
United States District Judge
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ON BEHALF OF THE STATE OF MAINE:
/s/ Avery T. Day
Avery T. Day, Acting Commissioner
Maine Department of Environmental Protection
12/15/15
Date
/s/ Peter B. LaFond
Peter B. LaFond, Assistant Attorney General
Maine Office of Attorney General
6 State House Station
Augusta, ME 04333-0006
(207) 626-8511
12/21/15
Date
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ON BEHALF OF THE UNITED STATES:
JOHN C. CRUDEN
Assistant Attorney General
Environment and Natural Resources Division
/s/ Amy J. Dona
Amy J. Dona
Environmental Defense Section
Environment and Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Washington, D.C. 20044-7611
(202) 514-0223
Dated:
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6/1/16
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