STATE OF MAINE et al v. UNITED STATES OF AMERICA et al

Filing 7

CONSENT DECREE. By JUDGE JOHN A. WOODCOCK, JR. (sfw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
____________________________________
)
THE STATE OF MAINE, through
)
the MAINE DEPARTMENT OF
)
ENVIRONMENTAL PROTECTION,
)
)
Plaintiff,
)
)
v.
)
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)
____________________________________)

Civil Action No. 2:16-cv-00217-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 Hooper Sands Road site in South Berwick, Maine (“Hooper Sands Site” or the “Site”) as
defined herein;
WHEREAS, the State alleges that the Maine Department of Environmental Protection
(“MDEP”), an agency of the State, incurred response costs within the meaning of CERCLA with
respect to the Site and seeks to recover past 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 Site; 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 Site 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.

3.

II. PARTIES BOUND
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.

“Past Response Costs” shall mean all costs of “response” as that term is

Court.

defined in Section 101(25) of CERCLA, 42 U.S.C. § 9601(25), incurred by the State for response
actions conducted prior to January 1, 2015, at or in connection with the Site, as defined herein.
c.

“Hooper Sands Site” or the “Site” shall mean the real property located

along the Hooper Sands Road in South Berwick, York County Maine, consisting of six (6)
contiguous parcels of land, generally depicted in Town of Casco tax records as Lot 4 (51.21
acres), Lot 4B (1.84 acres), Lot 4-1 (1.94 acres), Lot 4-2 (1.85 acres), Lot 40 (66.28 acres) and
Lot 54 (60 Acres) on Tax Map 13, fully described and recorded in the York County Registry of
Deeds in Plan Book 14642 on page 447, in book 15253 on page 236, in book 15938 on page 309,
in book 14950 on page 459, in book 9586 on page 207, and book 15463 on page 620, together
along with areas of soil and groundwater that were affected by contamination originating on these
properties. The site is generally shown on the map included in Appendix A.

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“State of Maine” or the “State” means the State of Maine and all of its

d.

departments, agencies, and instrumentalities, by and through the Office of the Maine Attorney
General.
“United States” means the United States of America and all of its

e.

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.
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 PAST RESPONSE COSTS
8.

Subject to paragraph 10, as soon as reasonably practicable after the Effective Date,

the United States will pay $110,665.00 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
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State House 17
Augusta, Maine 04333-0017
Attn: David Wright, 207-446-4366

9.

If such payment is not made in full within one-hundred and twenty (120) days after

either the Effective Date, 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.
10.

Said payment by the United States 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 receipt by the State 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 the Past Response Costs at the Site. This covenant
extends only to the United States and does not extend to any other person.
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12.

In consideration of the receipt of the payment required by Paragraph 8 of this

Decree, and subject to the limitations in Paragraph 13, the State hereby discharges, and covenants
and agrees not 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 Past Response Costs, including but not limited to Past Response Costs associated with
off-site contamination that may be emanating from the Site.
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; (b) to reduce or eliminate risks to
public health or the environment that were not known to MDEP at the time of approval of this
Decree; or (c) to assert against the United States any natural resource damages claims or actions
regarding the Site brought on behalf of the State or a state natural resource trustee.
14.

The United States hereby covenants not to sue the State for Past Response Costs,

except that the United States specifically reserves its right to assert against the State any claims or
actions regarding the Site 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

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retains all authority and reserves all rights to take any and all response actions authorized by law
at the Site.
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
Site against any person not a Party hereto. Nothing in this Consent Decree diminishes the right of
the United States, pursuant to Section 113(f)(2) and (3) of CERCLA, 42 U.S.C. § 9613(f)(2)-(3),
to pursue any such persons to obtain additional response costs or response action and to enter into
settlements that give rise to contribution protection pursuant to Section 113(f)(2).
16.

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 Past Response Costs.
17.

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
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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
18.

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
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.
19.

The State certifies, based on its knowledge and belief, that as of the Effective Date,

the State has not been reimbursed for the portion of the Past Response Costs 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 Past Response Costs paid pursuant to this
Decree from any other entity or through future federal government contracts, grants or other
agreements.
IX. RETENTION OF JURISDICTION
20.

This Court shall retain jurisdiction over this matter for the purpose of interpreting

and enforcing the terms of this Decree.

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X. COSTS OF SUIT
21.

Subject to paragraph 8, each party to this Decree shall bear its own costs and

attorneys’ fees in this action.
XI. SIGNATORIES/SERVICE
22.

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.
23.

This Decree may be signed in counterparts, and its validity shall not be challenged

on that basis.

IT IS SO ORDERED.
Dated and entered this 3rd day of May, 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 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
[phone]

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
[phone]

Dated: 3/14/2016

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Appendix A, site sketch.

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