Emhart Industries v. CNA Holdings LLC

19-1563P

2021 | Cited 0 times | First Circuit | February 17, 2021

United States Court of Appeals For the First Circuit No. 19-1563

EMHART INDUSTRIES, INC.,

Plaintiff/Third Party Plaintiff, Appellee,

STATE OF RHODE ISLAND, by and through the Rhode Island Department of Environmental Management,

Plaintiff, Appellee,

v.

UNITED STATES DEPARTMENT OF THE AIR FORCE, et al.,*

Defendants/Third Party Plaintiffs, Appellees,

BLACK & DECKER INC.,

Third Party Plaintiff/Third Party Defendant, Appellee,

CNA HOLDINGS LLC, f/k/a CNA HOLDINGS, INC, et al.,

Third Party Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

* Pursuant to Fed. R. App. P. 43(c)(2), Acting Secretary of the United States Department of the Air Force John P. Roth has been substituted for former Secretary Barbara M. Barrett; Acting Secretary of the United States Department of the Navy Thomas W. Harker has been substituted for former Secretary Kenneth Braithwaite; and Secretary of the United States Department of Defense Lloyd J. Austin III has been substituted for former Acting Secretary David L. Norquist.

Before Barron, Circuit Judge, and Saris, District Judge.

Bryan Killian, with whom Duke K. McCall, III, Douglas A. Hastings, Morgan, Lewis & Bockius LLP, Dan Vineyard, Jennifer Caughey, and Jackson Walker LLP, were on brief, for appellants CNA Holdings LLC, et al. Joan M. Pepin, Attorney, Environment and Natural Resources Division, United States Department of Justice, with whom Jeffrey Bossert Clark, Assistant Attorney General, Eric Grant, Deputy Assistant Attorney General, Michael T. Gray, Attorney, Jerome W. MacLaughlin, Attorney, Phillip R. Dupré, Attorney, Susan Forcier, Deputy Chief Legal Counsel, Rhode Island Department of Environmental Management, Joy Sun, Eve S. Vaudo, EPA Region 1 Office of General Counsel, Michael L. Casillo, Litigation Attorney, Air Force Legal Operations Agency, and Genifer M. Tarkowski, Attorney, Naval Litigation Office, were on brief, for appellees United States, et al. Joseph W. Hovermill, with whom Joseph L. Beavers, Alexander P. Creticos, Miles & Stockbridge P.C., Christopher A. Duggan, H. Reed Witherby, and Smith Duggan Buell & Rufo LLP, were on brief, for appellees Emhart Industries, Inc., et al.

February 17, 2021

 Judge Torruella heard oral argument in this matter and participated in the semble, but he did not participate in the issuance of the panel's opinion in this case. The remaining two panelists therefore issued the opinion pursuant to 28 U.S.C. § 46(d).  Of the District of Massachusetts, sitting by designation.

BARRON, Circuit Judge. This is an appeal by three

companies -- CNA Holdings LLC, Exxon Mobil Corporation, and Union

Oil Company of California -- that seek to vacate a consent decree

("the Decree") to which they were not parties but that had been

entered into by the U.S. Department of Defense, the U.S. Department

of the Air Force, and the U.S. Department of the Navy ("the federal

agencies"); Emhart Industries; the U.S. Environmental Protection

Agency ("EPA"); and the State of Rhode Island. The Decree settled

claims involving those parties under the Comprehensive

Environmental Response, Compensation, and Liability Act ("CERCLA")

and Rhode Island law regarding the responsibility for, and the

allocation of the costs of, the cleanup of a contaminated Superfund

site located in North Providence, Rhode Island ("the Site"). But,

the Decree also purported to do something of direct import for the

appellants: bar their own CERCLA claims against Emhart and the

federal agencies pertaining to the allocation of the costs of

cleaning up the Site. In seeking to overturn the District Court's

approval of the Decree, the appellants contend that it was improper

as a matter of law and that, in any event, the District Court

abused its discretion in approving it, because it failed

meaningfully to review it before doing so. We disagree and thus

affirm the District Court's ruling approving the Decree.

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I.

A.

Beginning in the 1940s,1 Metro Atlantic (the corporate

predecessor to Emhart Industries)2 manufactured textile chemicals

on nine acres on a peninsula in North Providence, Rhode Island

("the Source Area"). Emhart Indus., Inc. v. New Eng. Container

Co. (Phase I), 130 F. Supp. 3d 534 , 538, 541, 542 n.18 (D.R.I.

2015). During some of those years, the company produced

hexachlorophene ("HCP") there , id. at 542, and, in the process of

manufacturing it, released 2,3,7,8-tetrachlorodibenzo-p-dioxin

("2,3,7,8-TCDD") into the ground in the Source Area and the nearby

Woonasquatucket River , id. at 540. New England Container Company ("NECC") operated a

business reconditioning 55-gallon drums on a portion of the Source

Area beginning around 1952. Id. at 542, 547. Various entities,

including Metro Atlantic and the Department of Defense, sent drums

to NECC to be reconditioned. Id. at 547. The drums often contained

1 Our recitation of the facts is drawn from the District Court's findings of fact and conclusions of law from the first two phases of the bench trial below. See Emhart Indus., Inc. v. New Eng. Container Co. (Phase II), 274 F. Supp. 3d 30 (D.R.I. 2017); Emhart Indus., Inc. v. New Eng. Container Co. (Phase I), 130 F. Supp. 3d 534 (D.R.I. 2015). 2At the time, Metro Atlantic was called the Atlantic Chemical Company. Since the initiation of this litigation, Black & Decker, Inc., Emhart's successor-in-interest, has been added as a party. We will refer to "Emhart" only for simplicity.

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residues of the chemicals that they had carried prior to their

refurbishment. Id.

In 1996, the EPA discovered fish contaminated with

dioxin in the Woonasquatucket River. Id. at 541. Of all the

contaminants subsequently discovered at the Site, 2,3,7,8-TCDD was

not only the most toxic dioxin but also one of the most toxic

substances of any kind. Id. at 540 n.11.

In investigating the Site, the EPA identified the Source

Area as the epicenter of the contamination. Id. at 541-42. In

1999 and 2000, the EPA issued notices of potential liability for

that contamination to NECC and Emhart, respectively, as

potentially responsible parties under section 107(a) of CERCLA.

In 2000, moreover, the agency placed the Site, which consisted of

a three-mile stretch of the Woonasquatucket River and the

surrounding area, on its National Priorities List ("NPL") for

cleanup under CERCLA. Id. at 541. B.

CERCLA "grants the President broad power to command

government agencies and private parties to clean up hazardous waste

sites." Key Tronic Corp. v. United States, 511 U.S. 809 , 814

(1994). The statute provides that when there is a "release or

substantial threat of release" of "any hazardous substance," or

"any pollutant or contaminant" that "may present an imminent and

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substantial danger to the public health or welfare," the EPA3 is

authorized to "remove or arrange for the removal of, and provide

for remedial action relating to such hazardous substance,

pollutant, or contaminant at any time . . . or take any other

response measure consistent with" the statutory scheme. 42 U.S.C.

§ 9604(a)(1).

Sites for which the EPA has determined that the need for

such a response action is "urgen[t]" are listed on the NPL. See

42 U.S.C. § 9605(a)(8)(A)-(B); United States v. Gen. Elec. Co.,

670 F.3d 377 , 381 n.3 (1st Cir. 2012); Bd. of Regents of Univ. of

Wash. v. EPA, 86 F.3d 1214 , 1217 (D.C. Cir. 1996). The NPL must

be "revise[d] . . . no less often than annually." 42 U.S.C.

§ 9605(a)(8)(B).

To select a response action for a site, the EPA conducts

both a remedial investigation and a feasibility study. See 40

C.F.R. § 300.430(a)(2); Carson Harbor Vill., Ltd. v. County of Los

Angeles, 433 F.3d 1260 , 1267-68 (9th Cir. 2006); see also CPC

Int'l, Inc. v. Northbrook Excess & Surplus Ins. Co., 962 F.2d 77 ,

79 (1st Cir. 1992) (describing the remedial investigation and

feasibility study as a "predicate to necessary remediation"). In

the remedial investigation phase, the EPA evaluates the need for

3Much of the authority granted to the President under CERCLA has been delegated to the EPA. See Kelley v. EPA, 15 F.3d 1100 , 1103 (D.C. Cir. 1994) (citing Exec. Order No. 12,580 § 1(b)(1), 52 Fed. Reg. 2923, 2923 (Jan. 23, 1987)).

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a response action and collects the information necessary to assess

the possible response actions that could be taken. 40 C.F.R.

§ 300.430(d)(1).

The EPA is required to select a response action that is

"protective of human health and the environment," will "maintain

protection over time," and will "minimize untreated waste." Id.

§ 300.430(a)(1)(i). To that end, the EPA conducts a feasibility

study that, based on the data gathered in the remedial

investigation, assesses possible response actions against a range

of criteria, including cost, complexity, environmental impact,

benefits to human health, and state and community buy-in. See id.

§ 300.430(e)(7), (9). In that study, the EPA identifies a preferred response

action and opens it to public comment. See id.

§ 300.430(f)(1)(ii). Based on the public comments that the EPA

receives and its own analyses, the EPA then selects a response

action. Id. § 300.430(f)(4)(i). The EPA also at that point

compiles the documents that formed the basis for its selection of

the response action in an administrative record that includes the

Record of Decision ("ROD"). Id. §§ 300.430(f)(5)(i), 300.800(a). The response action that the EPA selects can be carried

out by the EPA itself; alternatively, the EPA can order

"responsible parties" under section 107(a) of CERCLA to carry it

out. Key Tronic Corp., 511 U.S. at 813-14 ; see also 42 U.S.C.

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§ 9607(a). CERCLA addresses how the costs of carrying out the

response action may be allocated among responsible parties.

For "four broad classes" of responsible parties,

including any corporation "who at the time of disposal of any

hazardous substance owned or operated any facility at which such

hazardous substances were disposed of," "CERCLA imposes strict

liability for environmental contamination." Burlington N. & Santa

Fe Ry. Co. v. United States, 556 U.S. 599 , 608-09, 608 n.5 (2009)

(quoting 42 U.S.C. § 9607(a)). Moreover, CERCLA provides that any

given responsible party can be held liable by the EPA for the

entire cost of carrying out the response action. Id. at 614-15. Where there are multiple responsible parties, however,

a "CERCLA defendant[] seeking to avoid joint and several liability

bear[s] the burden of proving that a reasonable basis for

apportionment exists." Id. at 614. In addition, even where the

harm is not susceptible to apportionment, CERCLA "permit[s] . . .

private parties [who are themselves responsible parties] to

recover cleanup costs and seek contribution from [other]

responsible parties" for carrying out the response action. City

of Bangor v. Citizens Commc'ns Co., 532 F.3d 70 , 90 (1st Cir.

2008).

Specifically, a responsible party may seek cost recovery

under section 107, see 42 U.S.C. § 9607, or contribution under

section 113, see 42 U.S.C. § 9613, against any other responsible

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party. Section 107(a) "allows for full recovery of costs," United

States v. Davis, 261 F.3d 1 , 29 (1st Cir. 2001), by a responsible

party from other responsible parties, unless the harm can be

apportioned in a manner that would preclude such full recovery,

Burlington N. & Santa Fe Ry. Co., 556 U.S. at 614-15 . Section

113(f)(1), by contrast, allows a responsible party to seek

contribution from other responsible parties for costs incurred in

carrying out a response action subject to the allocation of those

costs by a court "using such equitable factors as the court

determines are appropriate." 42 U.S.C. § 9613(f)(1).

Additionally, a party who is held liable under section 107(a) as

a responsible party can petition the President under section

106(b)(2) of CERCLA to recover reasonable costs associated with

its carrying out the remedy that the EPA ordered it to perform to

clean up a site , id. § 9606(b)(2)(A), if that responsible party

can establish that the response action that the EPA required was

"arbitrary and capricious or otherwise not in accordance with law,"

id. § 9606(b)(2)(D).

There is one further piece of this intricate legislative

framework that bears on the issues before us. CERCLA contemplates

the possibility that one or more responsible parties will choose

to settle with the United States. Indeed, "early

settlement[] . . . is an integral part of the statutory plan."

See United States v. Cannons Eng'g Corp., 899 F.2d 79 , 92 (1st

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Cir. 1990). CERCLA provides in this connection that a party that

"has resolved its liability to the United States or a State in

a[] . . . judicially approved settlement shall not be liable for

claims for contribution regarding matters addressed in the

settlement." 42 U.S.C. § 9613(f)(2). When such a settlement is

entered, it "reduces the potential liability of the [nonsettling

parties] by the amount of the settlement," id., instead of by the

settling parties' equitable share of the contamination, and thus

can lead to "disproportionate liability" for nonsettlors, Cannons,

899 F.2d at 91 .

C.

Between 2000 and 2003, the EPA issued various

administrative orders directing NECC, Emhart, and others to

undertake response actions at the Site to effectuate its cleanup.

In 2006, Emhart filed cost recovery and contribution claims under,

respectively, CERCLA sections 107(a) and 113(f)(1) against NECC

(as a responsible party) and its insurers. Phase I, 130 F. Supp.

3d at 538. Emhart alleged in those claims that it had incurred

various costs in carrying out the EPA's administrative orders

setting forth the response actions and that it expected to continue

to accrue costs in doing so in future response actions.

In 2011, Emhart filed another set of cost recovery and

contribution claims under those respective provisions of CERCLA in

connection with the cleanup of the Site. Id. This time, the

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claims were against the federal agencies , id., as well as the

United States as the party that "controls" them. Emhart alleged

that the federal agencies were themselves responsible parties

under section 107(a) of CERCLA, because they had shipped drums

carrying toxins to NECC during the time period in question. See

id. at 540-41. Emhart alleged in its complaint that while the EPA had

not yet determined how the Site should ultimately be remediated,

it believed that the EPA ultimately would "demand that Emhart

undertake additional remedial work at the Site potentially costing

hundreds of millions of dollars." The United States

counterclaimed, both on behalf of the federal agencies -- as

responsible parties in their own right -- for contribution under

section 113(f)(1) of CERCLA and on behalf of the EPA for cost

recovery under section 107(a) of that statute. Phase I, 130 F.

Supp. 3d at 538.

In 2012, Emhart's CERCLA suit against the EPA and the

federal agencies was consolidated with its CERCLA suit against

NECC and its insurers. Id. at 538 n.3. Later that year, the

United States, on behalf of the EPA and the federal agencies,

brought CERCLA claims for both cost recovery and contribution in

connection with that pending litigation against a collection of

third-party defendants -- namely, various companies that had sent

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drums to NECC for reconditioning at the Site. Those third-party

defendants included each of the appellants here.4

Also in 2012, the EPA issued the ROD ("the 2012 ROD")

for the Site. Id. at 601. The 2012 ROD identified the agency's

selected response action (which encompassed a number of discrete

remedial and removal actions) for the Site going forward. It also

described the facts, analyses, and policy considerations the EPA

had accounted for in its remedy-selection process. See id.; Emhart

Indus., Inc. v. New Eng. Container Co. (Phase II), 274 F. Supp. 3d

30 , 42 (D.R.I. 2017). The ROD estimated the total outstanding

cost associated with implementing the response action going

forward at over $100 million. Phase I, 130 F. Supp. 3d at 601-

02.

In 2014, the EPA issued a Unilateral Administrative

Order ("UAO"). Phase II, 274 F. Supp. 3d at 79 . The UAO directed

Emhart to perform the response action designated in the 2012 ROD.

Id. By the time the UAO issued, the parties to the consolidated

CERCLA litigation involving the EPA, Emhart, the NECC, the federal

agencies, and the other companies accused of sending drums to the

Site were already engaged in discovery. The District Court then

Eventually, Emhart also filed CERCLA cross-claims against 4

the third-party defendants, including appellants, each of which has since brought cross-claims against Emhart under CERCLA. CNA Holdings has also filed CERCLA counterclaims against the United States.

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entered a case management order providing that this litigation

would proceed in three phases.

The first phase would determine whether Emhart and NECC

were liable under section 107(a) of CERCLA as responsible parties,

including whether they were jointly and severally liable or whether

the harm that each had caused was subject to apportionment. The

second phase would address the response action that the EPA had

ordered Emhart to carry out in the UAO and how it would impact

parties ultimately deemed to be responsible parties under CERCLA,

whomever they might be. The third and final phase, "if required,"

would address the liability as responsible parties under CERCLA of

the third-party defendants -- and thus of the appellants -- as

well as the amount of money each would have to pay given the

pending CERCLA claims for cost recovery and contribution involving

them. The District Court stayed the third-party defendants'

obligations to take or submit discovery but provided that the

third-party defendants could attend the depositions and review the

documents produced in discovery for the first two phases.

In the case management order, the District Court stated

that it would "not rule on the liability of the [Department of

Defense], or its amount in contribution, if any, until the third

phase." Phase I, 130 F. Supp. 3d at 539. Even still, that order

instructed that "[a]ll evidence pertaining to the [the Department

of Defense's] liability for contamination of the Site [would] be

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presented during the first phase . . . of the trial." Id. The

District Court explained that "the evidence [would] be used solely

to determine the liability of Emhart and NECC and whether this

liability (if proven) is divisible among the two parties." Id.

D. Shortly before Phase I of the trial began, NECC settled

its claims with the federal parties. Id. The District Court approved and entered a consent decree reflecting that settlement.

Id. That consent decree provided NECC with protection against

contribution claims under CERCLA by any other responsible party in

connection with the Site. It thus resulted in the dismissal of

all of the pending CERCLA claims between Emhart, NECC, and NECC's

insurers. Id. at 539 & n.6.

In light of these developments, the first phase of the

trial focused on Emhart's liability under CERCLA as a responsible

party. Id. at 539 . That first phase was completed following a

twenty-day bench trial in May and June 2015. Id. at 540 .

Emhart's frontline position in that trial was that it

was not a responsible party under CERCLA. Id. Emhart also

advanced an argument in the alternative, however. It contended

that, even as a responsible party, it was not jointly and severally

liable for the costs of the entire cleanup of the Site under CERCLA

because its liability could be apportioned with NECC's. Id. At

the same time, though, Emhart continued to maintain its CERCLA

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claims against the federal agencies for both cost recovery and

contribution. Id.

At the end of Phase I, the District Court concluded that

Emhart was jointly and severally liable under section 107(a) of

CERCLA as a responsible party. Id. at 602. The District Court

then went on to hold that Emhart had not proved by a preponderance

of the evidence that the barrels that the Department of Defense

sent to the Source Area contained toxic substances. Consequently,

the District Court rejected Emhart's CERCLA claims for both

contribution and cost recovery against the federal agencies. Id.

Phase II of the consolidated litigation then began. The

District Court conducted a thirteen-day bench trial that came to

an end in January 2017. Phase II, 274 F. Supp. 3d at 37 n.2. At

the trial, the District Court admitted evidence, accepted post-

trial briefing, and heard oral argument concerning the response

action that the EPA had ordered Emhart to carry out in the UAO.

Id.

The District Court again noted during Phase II that

"[t]he necessary contributions, if any, of third-party defendants

[would] be addressed in Phase III of the trial." Id. at 38. Accordingly, Phase II focused on whether the EPA's "remedy-

selection process," as reflected in the 2012 ROD, for the response

action Emhart had been ordered to carry out in the UAO "was

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arbitrary, capricious, or otherwise not in accordance with law."

Id. at 37-38. That response action required, among other things,

removal of buried waste and contaminated sediment from the Source

Area, disposal of those materials, installation of a hazardous-

waste cap and soil cover, and long-term monitoring and maintenance.

Id. at 52-53, 52 n.23. The technical requirements for the landfill

cap were derived from Subtitle C of the Resource Conversation and

Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq., and thus called

for a specialized landfill cap in order to prevent toxins from

seeping into the groundwater and contaminating nearby bodies of

water. See Phase II, 274 F. Supp. 3d at 51 n.17. We will refer,

following the parties, to this cap as the "RCRA C cap."

The District Court noted that, with respect to the

response action that Emhart was ordered to carry out in the UAO,

Emhart had "argue[d] that several of EPA's individual actions and

decisions along the way were either arbitrary, capricious, or not

in accordance with CERCLA." Phase II, 274 F. Supp. 3d at 53 .

Indeed, Emhart challenged the response action on a host of

different grounds. See id. at 53-80. The District Court did find

that "[a]s a general matter, . . . EPA followed the basic steps

mandated by CERCLA and the [National Contingency Plan] in

developing its remedial action for the Site." Id. at 53. Nevertheless, the District Court found that Emhart had

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successfully established, on the then-current record, as reflected

in the 2012 ROD, that several distinct decisions the EPA made in

its remedy-selection process were, per CERCLA, arbitrary,

capricious, or otherwise not in accordance with law. Id. at 80. Consequently, the District Court stayed the UAO compelling Emhart

to carry out the response action documented in the 2012 ROD until

"th[ose] matters [were] resolved." Id. at 81. As to how the EPA could go about solving those problems,

the District Court explained that it could "envision several ways

EPA could approach the[] deficiencies." Id. One possibility the District Court contemplated was that the EPA might decide the best

path forward was to "reopen the remedial investigation and

feasibility study process." Id. The District Court ultimately

took "no view as to the appropriate course of action" and left it

"to EPA to address these issues in the first instance," while

retaining jurisdiction over the matter to ensure they were properly

handled. Id.

Two months later, the United States, on behalf of the

EPA, filed a motion for reconsideration of the District Court's

ruling concerning the response action at issue. The United States

noted that the EPA had made "hundreds of decisions" in selecting

the response action and that, "[a]fter the lengthy trial and months

of painstaking analysis, and post-trial briefs totaling over 900

pages," the District Court had "narrowed the number of alleged EPA

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errors down to three." The United States argued that "the

Administrative Record support[ed] EPA's determinations on all

three issues" and that, even if those three decisions were

erroneous, "the record show[ed] that correcting the alleged errors

would have made no difference in the selection of the remedy."

In June 2018, while the EPA's motion for reconsideration

was still pending, the State of Rhode Island filed various claims

against Emhart under CERCLA and state environmental laws, see R.I.

Gen. Laws §§ 23-18.9-10, 23-19.1-22. That action was consolidated

with the pending litigation in the District Court on July 6.

E.

Three days later, on July 9, 2018, the United States and

the State of Rhode Island lodged a proposed version of the Decree

with the District Court. The proposed decree would have resolved

all claims regarding the Site by the EPA and the federal agencies

against Emhart under CERCLA, by Rhode Island against Emhart under

CERCLA and R.I. Gen. Laws §§ 23-18.9-1 et seq., 23-19.1-1 et seq.,

and 23-19.14-1 et seq., and by Emhart against the EPA and the

federal agencies under CERCLA, subject to certain standard

reservations.

The proposed decree also required Emhart to pay the

governments' unrecovered costs for the past cleanup. Those past

costs totaled approximately $42 million; the anticipated costs

associated with the remaining cleanup at that point were $96

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million. Additionally, under the proposed decree, Emhart agreed

"to perform the remedy EPA selected in the 2012 ROD for the Site."

It was accompanied by a Statement of Work ("SOW"), which added

further detail as to how Emhart had promised to implement that

response action. For example, under the SOW, Emhart would be

permitted "to investigate and propose for EPA's consideration

potential modifications to the remedy."

With respect to the federal agencies, the proposed

decree provided that they collectively would pay $550,000 to

"resolve any liability they may have in connection with the Site."

Moreover, both Emhart and the federal agencies would "receive

protection from contribution actions or claims as provided in

Section 113(f)(2) of CERCLA . . . for the defined matters

addressed by the Consent Decree." The United States also indicated

that it intended to dismiss its CERCLA claims for cost recovery on

behalf of the EPA and its CERCLA claims for contribution on behalf

of the federal agencies against the third-party defendants,

including appellants (although Emhart made no such commitment).

Then, in September of 2018, after opening the proposed

decree for public comment, the United States and Rhode Island

jointly filed a motion for entry of the Decree. In the motion,

the United States and Rhode Island argued that the Decree was

"fair, reasonable, and consistent with the goals of CERCLA."

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Appellant CNA Holdings filed a motion in opposition,

along with other third-party defendants, including the two other

appellants here. The third-party defendants objected on two

grounds relevant to the issues we must decide on appeal: (1) that

the proposed decree called for implementation of a remedy that was

the same as the one required by the response action that the

District Court had previously held was arbitrary and capricious

under CERCLA, thereby rendering the Decree itself inconsistent

with CERCLA; and (2) that the proposed decree was "not

substantively fair" as a whole because no justification was

provided for setting the federal agencies' payment at $550,000,

such that the Decree could not be approved.

Emhart and the United States both filed motions in

response. The District Court then held a hearing on the question

of whether to approve the proposed decree. A few weeks later, on

April 8, 2019, the District Court entered an order approving the

Decree. The District Court explained that "[a]fter a thorough

review of the 2012 Record of Decision, Consent Decree, Statement

of Work, the United States' Motion for Reconsideration, all

parties' briefing related to the Consent Decree, and the

representations made at the March 19, 2019 hearing," it had

concluded "that the remedial action described in the ROD, when

viewed in light of how the Statement of Work and Consent Decree

propose to effectuate that remedial action, is not inconsistent

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with CERCLA and the National Contingency Plan." (citations

omitted). The District Court further held that "none of the

arguments presented by Third-Party Defendants in their Oppositions

poses an obstacle to approving the . . . Decree at this time."

The District Court thus vacated its Phase II decision and approved

the Decree. Finally, the District Court found that there was "no

just reason for delay" and certified its decision as final within

the meaning of Federal Rules of Civil Procedure 54 and 58.

Three of the third-party defendants -- CNA Holdings LLC,

Exxon Mobil Corporation, and Union Oil Company of California --

filed a timely notice of appeal on May 31, 2019. See Fed. R. App.

P. 4(a)(1)(B). We have jurisdiction under 28 U.S.C. § 1291.

II.

The appellants put forth three grounds for rejecting the

District Court's approval of the Decree. We first address their

assertion that it was an abuse of discretion for the District Court

to approve the Decree because it incorporates a remedy that is

identical to the response action the EPA selected in the 2012 ROD

that the District Court had determined was "arbitrary and

capricious" under CERCLA. We then address the appellants'

contention that the District Court erred in approving the Decree

because the fact that it required the federal agencies to pay only

$550,000 to protect themselves from liability rendered it

"substantively unfair." Finally, we turn to the appellants'

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argument that the District Court erred in approving the Decree by

failing meaningfully to review it.5

The District Court's approval of the Decree "is encased

in a double layer of swaddling." Cannons, 899 F.2d at 84 . The

first layer inheres in the standard of review a district court

must itself apply in deciding whether to approve a consent decree

settling claims under CERCLA involving the United States, as that

standard "implicates the trial court's deference to the agency's

expertise and to the parties' agreement." Id. Under this

standard, a district court may approve such a consent decree only

if it is "reasonable, faithful to the statute's objectives, and

fair (both procedurally and substantively)." United States v.

Charles George Trucking, Inc., 34 F.3d 1081 , 1084 (1st Cir. 1994).

5 Though no party has argued otherwise, we note that the appellants' claims are justiciable. Given that the appellants have plausibly pled valid cost recovery and contribution claims against Emhart and the federal agencies that will be extinguished pursuant to the Decree, they have a cognizable interest in the Decree's approval and entry that gives them standing to appeal. See City of Bangor, 532 F.3d at 92-93 . Moreover, appellants' rights to pursue their claims against Emhart and the federal agencies were directly affected by the District Court's decision. The fact that the precise amount they may one day be required to pay is not yet set does not affect our analysis of the legal dispute before us, which determines whether they will be able to bring those claims at all. Thus, the nature of this dispute is neither "premature" nor "abstract," McInnis-Misenor v. Me. Med. Ctr., 319 F.3d 63 , 70 (1st Cir. 2003) (quoting Abbott Lab'ys v. Gardner, 387 U.S. 136 , 148 (1967)), but is instead ripe for our review.

- 22 -

"The second layer of swaddling derives from the nature

of appellate review." Cannons, 899 F.2d at 84 . We "will overturn

a district court's decision to approve the entry of a CERCLA

consent decree in a case involving the United States 'only for

manifest abuse of discretion.'" City of Bangor, 532 F.3d at 93 -

94 (quoting Charles George Trucking, 34 F.3d at 1085 ). To meet

that standard, the objectors must establish that "the lower court

made a serious error of law or suffered a meaningful lapse of

judgment." Charles George Trucking, 34 F.3d at 1085 .

A.

We start with the appellants' contention that the

District Court erred in approving the Decree because it requires

Emhart to implement a remedy that is identical to the response

action that the EPA selected in the 2012 ROD and that the District

Court found to be, at least in part, arbitrary and capricious under

CERCLA in Phase II of the consolidated litigation. See 42 U.S.C.

§ 9613(j)(2). In pressing this argument, the appellants do not

contend that, in making that determination, we must confine

ourselves to a consideration of only the administrative record

that was then in place. Indeed, the appellees reference, in

support of there being a sound basis for the remedy, not only the

2012 ROD, but also the explanations for the response action

identified in the 2012 ROD that the EPA offered in the course of

the Phase II litigation. They also reference the information that

- 23 -

the EPA submitted to the District Court when it sought approval of

the Decree, as well as the Decree itself. Yet, the appellants

make no argument that these additional materials, which were not

part of the administrative record at the time of the Phase II

litigation, fall outside the relevant record for purposes of our

review of the District Court's approval of the Decree.

Accepting this understanding of the relevant record in

this appeal, we reject the appellants' challenge to the District

Court's decision to approve the Decree insofar as it rests on the

District Court's Phase II ruling that the response action there at

issue was arbitrary and capricious under CERCLA. We emphasize

that, in doing so, we assume, to the appellants' benefit, that the

District Court did not err in determining in the Phase II

litigation that the response action at issue there was arbitrary

and capricious. For, as we will explain, that ruling does not

itself provide a basis for concluding that the District Court

abused its discretion in holding that the Decree, despite its

inclusion of a remedy that mirrored that response action, was

"reasonable, fair, and consistent with the purposes that CERCLA is

intended to serve.'" Cannons, 899 F.2d at 85 (quoting H.R. Rep.

No. 253, pt. 3, at 19 (1985)); see also id. at 85-86 (noting that

Congress intended for us to "take a broad view of proposed

settlements" and leave "highly technical issues . . . to the

discourse between [the settling] parties").

- 24 -

1.

The appellants first ask us to focus on the Decree's

requirement to install the RCRA C cap. As we have explained, the

response action the EPA selected in the 2012 ROD also included

such a requirement. The appellants argue that this component of

the Decree's remedy is inconsistent with CERCLA, such that the

Decree as a whole is, because it is predicated on restoration goals

that the EPA set for the Source Area's drinking water during the

remedy-selection process documented in the 2012 ROD which the

appellants contend are flawed. As support for that argument, they

note that the District Court invalidated the requirement to install

a RCRCA C cap in the earlier response action as "arbitrary and

capricious" during Phase II, because it determined that it was

predicated on those restoration goals, which it found were

unsupportable.6 But, we are not persuaded by this challenge to

the District Court's decision to approve the Decree.

The appellants are right that, in selecting the 2012

response action that included the requirement to install such a

RCRA C cap, the EPA classified the groundwater at the Source Area

as "a potential source of drinking water." Phase II, 274 F. Supp.

3d at 65. They are also right that, in Phase II of the consolidated

6At oral argument, counsel for appellants confirmed that they only object to the groundwater classification insofar as it influenced the EPA's decision to require a RCRA C cap in the remedy.

- 25 -

litigation, the District Court concluded that it was

"overwhelmingly clear" that, at that time, "the Source Area

groundwater [was] . . . far too contaminated to provide a source

of drinking water" and that it would be unrealistic to expect much

change on that front. Id. at 66. Additionally, as the appellants rightly note, the

District Court found at that time that, as a result of that

classification, the EPA "adopt[ed] stricter cleanup goals for the

Source Area groundwater" than it otherwise would have. Id. at 65. The appellants are right as well that it was on those grounds that

the District Court then concluded in Phase II that the drinking

water classification was arbitrary and capricious because the EPA

had "not collected sufficient information or conducted sufficient

analysis" to support its conclusion that the groundwater could one

day be potable. Id. at 67. And, finally, the appellants are

correct that the District Court concluded that the cap was likewise

arbitrary and capricious because, judging from the 2012 ROD, the

decision to require it appeared to be "inextricably intertwined"

with the groundwater goals. Id. at 68. But, the District Court explained in its Phase II ruling

that it did not take issue with the EPA imposing a RCRA C cap

requirement per se. Id. Instead, it expressly raised the

possibility that the EPA might be able to justify the RCRA C cap

- 26 -

requirement by establishing that it was "necessary regardless of

EPA's groundwater remediation goals." Id.

That is significant for present purposes because the

record that was before the District Court at the time that it

approved the Decree -- and thus the one that we now consider --

includes a motion from the EPA highlighting various aspects of its

decision-making process that demonstrate that it had concluded as

of the time that the District Court reviewed the Decree that the

RCRA C cap requirement was appropriate to include notwithstanding

the District Court's groundwater ruling. Specifically, the EPA

explained that, even though the RCRA C cap would help facilitate

groundwater cleanup, that fact "was additive to the already

existing reasons that a RCRA C cap was appropriate" and that it

intended to require the RCRA C cap for other, independent reasons

as well.

The EPA then recounted some of those considerations. It

explained that "the justifications for the RCRA C cap include

better protection against scour and erosion from flooding,

physical containment of contaminated soils, and more reliable and

robust long term protection." The EPA also pointed out that,

regardless of its plans for the groundwater, it could only leave

certain chemicals in place in the Source Area if they were under

a cap that "complie[d] with the requirements of Subtitle C of

RCRA."

- 27 -

Moreover, the EPA reinforced those representations

during the hearing that the District Court held on the Decree

itself. When the District Court asked the EPA's counsel about

whether the existence of the Decree "change[d] the fact that [the

court had] found in Phase II" that the 2012 ROD was arbitrary and

capricious, the attorney referred the District Court to its motion

for reconsideration in which it had listed the independent reasons

for requiring the RCRA C cap. The EPA's counsel also stated at

that time that it was the EPA's position that the RCRA C cap was

"required anyway regardless of the groundwater issues." And,

indeed, in response, the District Court noted that, based in part

on those representations, "the landscape ha[d] significantly

changed from where it was at the close of the evidence" in Phase

II.7

We also find it significant that the SOW attached to the

Decree provided that the EPA and the settling parties anticipated

potentially reclassifying the Source Area groundwater. In

general, the EPA defers to state groundwater classification

guidelines when developing response actions in states with

The EPA did also argue in its motion for reconsideration 7

and in the hearing on the Decree that its initial 2012 ROD was not flawed. But, the agency's representations there still inform our understanding of its justifications for including the remedy in the Decree that is before us today, even if it separately believed the same remedy was justified on the record contained in the 2012 ROD.

- 28 -

approved schemes. See U.S. Env't Prot. Agency, OSWER Directive

No. 9283.1-09, The Role of CSGWPPs in EPA Remediation Programs

(1997), 1997 WL 1068504 . At the time of the Phase II litigation

and when the Decree was approved, Rhode Island did not have an

approved state classification scheme, so the EPA used the federal

one. Thus, the EPA categorized the Source Area's water as a

potential source of drinking water even though the Rhode Island

Department of Environmental Management "considered the Source Area

groundwater to be so contaminated" as to be "unsuitable for

potential use as drinking water." Phase II, 274 F. Supp. 3d at

64.

In the SOW, however, the EPA and the settling parties

noted that they would consider reclassifying the groundwater

pursuant to Rhode Island's scheme in the event that it was

approved. Despite contemplating the possibility of that change,

the SOW did not provide that the RCRA C cap requirement might be

eliminated. Instead, the Decree required the RCRA C cap regardless

of whether the groundwater was recategorized.

Thus, we see no basis for concluding that the requirement

to include a RCRA C cap in the remedy in the Decree was a function

of the EPA's groundwater remediation goals. Indeed, the appellants

acknowledge that there are other, valid reasons for which the EPA

might have decided to require a RCRA C cap, groundwater goals

aside.

- 29 -

The appellants do contend that we cannot be sure the EPA

would have required the RCRA C cap in the 2012 response action

absent the groundwater classification. But, that is beside the

point. The question for present purposes is not whether the

inclusion of the requirement to install a RCRA C cap in the

response action set forth in the 2012 ROD was arbitrary and

capricious. The question is whether the inclusion of that

requirement in the remedy set forth in the Decree renders it an

abuse of discretion for the District Court to have approved it.

Given the reasons the record reveals for concluding that, at the

time of the inclusion of the RCRA C cap requirement in the remedy

in the Decree, that requirement was justified for reasons unrelated

to the groundwater goals, we see no basis for concluding that it

was.

To be sure, the District Court had earlier determined,

on the basis of the record then before it, that it was arbitrary

and capricious to include that requirement in the response action.

But, that was then, and what matters is what the record that is

now before us reveals about the basis for the District Court's

approval. Thus, the appellants' first ground for contending that

we must vacate the Decree fails.

2.

The appellants next object that the District Court abused its

discretion in approving the Decree based on the fact that the EPA,

- 30 -

in selecting the response action in the 2012 ROD that the Decree

mirrors, used findings about the effect of the contaminants on the

fish population in Allendale Pond and other bodies of water in the

Source Area that the appellants contend are inaccurate. The

appellants point out that the District Court determined in the

Phase II litigation that those findings were unsupportable on the

record before it, rendering the response action based on them

arbitrary and capricious under CERCLA.8

In accord with the structure of the challenge to the Decree

that we have just rejected above, see supra Section II.A.1, the

8 In Phase II, Emhart challenged the fish consumption estimates that the EPA employed in its baseline risk assessment in several respects. In doing so, Emhart challenged, among other things, the EPA's assumptions that no largemouth bass would be consumed from Allendale Pond and that certain populations would consume fourteen grams of fish per day from the Site. See Phase II, 274 F. Supp. 3d at 78. In particular, Emhart argued that, by assuming that white suckers and eels, rather than bass, would be consumed from Allendale Pond, the EPA "skew[ed] its risk calculations" because "white suckers are 'bottom dweller[s]' and thus likely to have larger body burdens of chemical contaminants" and that eels likewise contained high concentrations of dioxin relative to other species. Emhart also took issue with the fact that the EPA assumed that individuals who consumed eels and white suckers would eat the entire fish but that individuals who consumed bass would eat just the less-contaminated fillet, further compounding the effects of assuming the absence of bass. The District Court ultimately concluded that "Emhart ha[d] demonstrated that [the EPA's] misstep [in assuming no bass would be consumed] arbitrarily increased the risk calculation for Allendale Pond." Phase II, 274 F. Supp. 3d at 78. The District Court further concluded that while the EPA "may ultimately determine that fourteen grams is the appropriate reasonable maximum consumption rate at the Site," on the record that was before the District Court, the EPA's decision to use that estimate was arbitrary. Id.

- 31 - appellants thus point to this Phase II ruling to argue that the

Decree cannot stand. For, they contend, it, like the 2012 response

action, is necessarily inconsistent with CERCLA due to its reliance

on these same flawed findings. But, we are not persuaded here

either.

When the EPA develops a response action, it uses

information like the fish population data that the appellants

contest to conduct a baseline risk assessment and set remediation

goals. See 40 C.F.R. § 300.430(d)(1), (d)(4), (e)(2)(i). Those

goals reflect "acceptable exposure levels that are protective of

human health and the environment." Id. § 300.430(e)(2)(i). Thus, if the EPA expects that local residents will catch and consume a

large number of fish from a given Superfund site, it is likely to

target cleaner water quality standards at that site in order to

keep those residents' exposure to toxins low.

In some instances where the EPA conducts such an

assessment, it will compute preliminary remediation goals and

discover that the background levels of the contaminants in the

surrounding environment are higher than the EPA's goals. Where

that is the case, the EPA will not develop a response action that

targets its original remediation goals. See U.S. Env't Prot.

Agency, OSWER Directive No. 9285.6-07P, Role of Background in the

CERCLA Cleanup Program 8-9 (2002). Instead, it will simply target

the background contaminant level, in part out of a concern that

- 32 -

the remediated areas will be recontaminated by their surroundings.

See id.

Here, in selecting the response action in the 2012 ROD,

the EPA computed its remediation goals assuming that there were no

largemouth bass in Allendale Pond and that certain populations

would consume fourteen grams of fish per day from the Site. See

Phase II, 274 F. Supp. 3d at 78. Based on those assumptions, the

EPA's remediation goal targeted a level of contamination, 0.43

parts per trillion ("ppt"), that was lower than that present in

the background environment, which was 15 ppt. As a result, the

response action that the EPA set forth in its 2012 ROD targeted

the background level of 15 ppt rather than the lower remediation

goal that was premised on the fish consumption estimates.

Thus, while the District Court found the underlying fish

consumption estimates unsupportable on the record before it during

Phase II, we do not see how that finding in and of itself bears on

whether the remedy in the Decree is problematic. Indeed, in its

motion for reconsideration in Phase II, the EPA recalculated its

remediation goal based on the alternative fish consumption

estimates that Emhart pressed in Phase II. The EPA's recalculation

resulted in a remediation goal of 2.77 ppt rather than 0.43 ppt.

But, that recalculated figure still represents a lower level of

contamination than the background level of 15 ppt. That accords

- 33 -

with the EPA counsel's representation at the hearing on the Decree

that the changed computations "didn't matter."

Thus, the appellants are unable to show that the EPA's

purportedly erroneous estimates from the 2012 ROD impacted the

Decree's remedy. Accordingly, their contention that the District

Court abused its discretion in approving the Decree, because it

impermissibly contains a remedy infected by data found to be

arbitrary and capricious in the Phase II litigation, fails.

B.

The appellants separately contend that a CERCLA consent

decree's "settlement terms must be based upon, and roughly

correlated with, some acceptable measure of comparative fault,"

even if the apportionment of the harm is "imprecise," Cannons, 899

F.2d at 87 , and that the Decree does not meet that test here. The

appellants rest this contention on the fact that the Decree

required the federal agencies to pay only $550,000 to relieve

themselves of any future liability in connection with the Site,

despite the fact that the EPA-ordered response action was estimated

to cost around $100 million. The appellants contend that, given

this gap between what the federal agencies agreed to pay for the

cleanup and the costs of the cleanup, we must find that the

District Court abused its discretion in approving the Decree. We

see no error, however.

- 34 -

We have previously noted that "no universally correct

approach" to comparative fault exists and that "[w]hatever formula

or scheme EPA advances for measuring comparative fault and

allocating liability should be upheld so long as the agency

supplies a plausible explanation for it." Id. We have such a

plausible explanation for the allocation of liability reflected in

the Decree that is at issue here.

As the EPA argued to the District Court in defending

this aspect of the Decree, the District Court in Phase I of the

litigation had "already found the [federal agencies] not liable

under CERCLA." Thus, the seemingly yawning gap between what the

federal agencies had been made to pay and their potential liability

was no gap at all. Moreover, when prompted by the District Court

as to why the Department of Defense should pay anything whatsoever,

counsel for the EPA explained that the United States was as

"concerned as any party about litigation risks" and the "litigation

costs" associated with continuing to participate in the lawsuit.

The appellants do object that "Emhart's failure to prove

the Agencies' liability during Phase I is not substantial evidence

that the Agencies' liability is insignificant." They contend that

they may still be able to establish liability where Emhart failed

and that therefore they "should get to finish discovery," which

they say "will provide EPA and the court the necessary context to

- 35 -

evaluate the [federal agencies'] proportional contribution to the

contamination at the Site."

At the hearing on the Decree, however, the District Court

explained that, "having lived through this for all these years,"

it believed "that th[e] possibility of liability by the [Department

of Defense] was litigated into the ground." Indeed, the District

Court remarked that it "c[ouldn't] imagine that . . . [any of the

third-party defendants, including appellants,] would think for a

moment that there was some potential benefit to going after the

[Department of Defense] on that theory."

Accordingly, it was neither a "harmful error of law" nor

a "meaningful error in judgment," Cannons, 899 F.2d at 84 (quoting

Anderson v. Cryovac, Inc., 862 F.2d 910 , 923 (1st Cir. 1988)), for

the District Court to accept the EPA's explanation that the federal

agencies' liability was essentially nonexistent but that the

agencies paid a settlement figure in order to precipitate the end

of their role in the litigation.9 CERCLA, after all, is designed

9 Although the appellants contended at oral argument before this Court that the District Court's decision in the Phase I proceedings only addressed the agencies' liability as to dioxin, and that they could still make out claims for contribution with regard to other chemicals, the District Court specifically rejected that argument when it ruled on the federal agencies' liability in Phase I. See Phase I, 130 F. Supp. 3d at 609 (rejecting Emhart's contention that only evidence of the agencies' liability as to dioxin had been presented because the case management order had required that "all evidence relating to the [Department of Defense's] liability, and not just evidence

- 36 -

to facilitate early settlement, which supplies a key mechanism by

which efficient cleanup of Superfund sites occurs. See Davis, 261

F.3d at 27 ("CERCLA . . . seeks to induce settlements at higher

amounts by allowing settlors to seek contribution from those who

have not yet settled."); Cannons, 899 F.2d at 92 ("Disproportionate

liability, a technique which promotes early settlements and deters

litigation for litigation's sake, is an integral part of [CERCLA's]

statutory plan.").

The appellants do allege that the federal agencies'

settlement figure was "nepotistically brokered" and that the EPA

shut them out of settlement negotiations in favor of reaching an

agreement with the federal agencies.10 They emphasize in this

regard that the District Court's case management order did stay

the appellants' ability to take discovery during Phase I and Phase

II.

But, the appellants do not dispute that they were privy

to all of the discovery Emhart conducted against the agencies in

Phase I. They also have made no proffer that could suffice to

relating to the [Department of Defense's] liability for dioxin, needed to be put forward in this phase"). 10The United States asserts that this argument is waived because the appellants did not bring a distinct objection under the heading of procedural fairness. But, procedural and substantive fairness are not entirely discrete concepts; it is "appropriate" for us "to consider the adequacy of the process" in evaluating substantive fairness. Cannons, 899 F.2d at 87 n.4.

- 37 -

show that they might succeed where others have failed. Nor was

this a consent decree between the EPA and the federal agencies

only; Emhart was also a party to it. See Charles George Trucking,

34 F.3d at 1088 ("Sophisticated actors know how to protect their

own interests, and they are well equipped to evaluate risks and

rewards.").

The lone out-of-circuit, unpublished, district court

opinion on which the appellants rely in pressing this contention

of self-dealing, United States v. Pesses, No. 90-654, 1994 WL

741277 (W.D. Pa. Nov. 7, 1994), does not convince us of its merit.

In that case, like here, the EPA entered a consent decree with

several federal agencies (as well as private parties). Id. at *4-

5. But, while the district court there refused to approve the

decree due in part to concerns about a "'sweetheart' deal" between

the EPA and those agencies , id. at *7, *15-17, it emphasized that

the EPA had failed adequately to explain the basis for the

"preferential treatment," id. at *18. For the reasons that we

have given, however, the District Court in the present case did

not abuse its discretion in finding that here the EPA did provide

such an explanation.

C.

Finally, we must address the appellants' argument that

the District Court failed to appropriately scrutinize the Decree

and instead merely rubber stamped it. They argue that the fact

- 38 -

that the order approving the Decree provides, by way of

explanation, only "a one-line assertion that, based on a 'thorough

review' of the materials, the remedy 'is not inconsistent with

CERCLA'" is evidence that the District Court failed to exercise

independent judgment. We disagree.11

We do not take the appellants to contend that the

District Court failed thoroughly to explain or consider the aspects

of the remedy in the Decree that mirrored the aspects of the

response action that it found in the Phase II litigation were not

"arbitrary and capricious." Nor would any such contention be

viable, given the District Court's meticulous opinion at that

stage. See generally Phase II, 274 F. Supp. 3d 30 . Instead, we

understand the appellants to argue that the District Court failed

adequately to explain why the aspects of the remedy embedded in

the Decree that mirrored the aspects of the response action that

it found were "arbitrary and capricious" in the Phase II litigation

were, in fact, appropriate when repackaged in the Decree.

As part of this argument, the appellants contend that the 11

District Court's decision to vacate its Phase II ruling without specifically explaining its reasons for doing so is evidence that the District Court "mistook its task" and did not exercise independent judgment. But, the appellants do not argue that the District Court lacked the power to vacate the earlier interlocutory ruling, and we do not see any reason that the District Court's choice to do so would impose a heightened requirement that the court explain its reasoning. Thus, the fact of vacatur provides no independent basis for concluding that the District Court abused its discretion.

- 39 -

First, the appellants understate the quality of the

District Court's explanation with respect to the import of its

Phase II findings as to the decision whether to approve the Decree.

In explaining that decision, the District Court catalogued the

extensive evidence that it had reviewed, including the original

remedy the EPA selected, the Decree, the SOW, the United States'

Motion for Reconsideration, the parties' briefing on the Decree,

and the parties' representations at the hearing on the Decree,

much of which post-dated the Phase II proceedings. It then

explained that it had concluded "that the remedial action . . .

when viewed in light of how the Statement of Work and Consent

Decree propose to effectuate [it], is not inconsistent with CERCLA

and the National Contingency Plan." (emphasis added). Citing to

the SOW, moreover, the District Court also specifically noted that

"[f]or example, [it] expect[ed] the parties [would] consider and

implement the reclassification of groundwater in line with the

state groundwater classification system." Then, consistent with

those conclusions, the District Court "approve[d] the Consent

Decree as fair, reasonable, and consistent with the goals of

CERCLA."

These statements indicate that the District Court

carefully considered the ways in which the record before it at the

time of its decision to approve the Decree differed from the record

before it when it ruled in the Phase II litigation on the response

- 40 -

action. They reflect, in other words, a reasoned judgment rather

than the absence of one.

Moreover, we have previously acknowledged the Supreme

Court's guidance that we ought to be "reluctant" to invalidate a

district court's entry of a consent decree "solely because the

court failed adequately to set forth its reasons or the evidence

on which they were based." United States v. Comunidades Unidas

Contra La Contaminacion, 204 F.3d 275 , 280 (1st Cir. 2000) (quoting

Protective Comm. for Indep. Stockholders of TMT Trailer Ferry,

Inc. v. Anderson, 390 U.S. 414 , 437 (1968)). As we have explained,

"unless we sense[] something deeply amiss," even where a district

court does not set forth its reasons for approving a consent decree

as is advisable, we ask only "whether the record contains adequate

facts to support the decision of the district court to approve the

proposed compromise." Id.

We see nothing deeply amiss here. The District Court

has been living with this litigation for over a decade. It is

plainly immersed in the details that bear on the remedy contained

in the Decree. See generally Phase I, 130 F. Supp. 3d 534 ; Phase

II, 274 F. Supp. 3d 30 . That "gives [us] confidence that a neutral

adjudicator, intimately acquainted with the case, has focused on

the essential criteria and found them not lacking." See

Comunidades Unidas Contra La Contaminacion, 204 F.3d at 280 .

- 41 -

III.

For the reasons that we have set forth, we affirm the

District Court's decision to approve the Decree.

- 42 -

United States Court of Appeals For the First Circuit No. 19-1563

EMHART INDUSTRIES, INC.,

Plaintiff/Third Party Plaintiff, Appellee,

STATE OF RHODE ISLAND, by and through the Rhode Island Department of Environmental Management,

Plaintiff, Appellee,

v.

UNITED STATES DEPARTMENT OF THE AIR FORCE, et al.,*

Defendants/Third Party Plaintiffs, Appellees,

BLACK & DECKER INC.,

Third Party Plaintiff/Third Party Defendant, Appellee,

CNA HOLDINGS LLC, f/k/a CNA HOLDINGS, INC, et al.,

Third Party Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

* Pursuant to Fed. R. App. P. 43(c)(2), Acting Secretary of the United States Department of the Air Force John P. Roth has been substituted for former Secretary Barbara M. Barrett; Acting Secretary of the United States Department of the Navy Thomas W. Harker has been substituted for former Secretary Kenneth Braithwaite; and Secretary of the United States Department of Defense Lloyd J. Austin III has been substituted for former Acting Secretary David L. Norquist.

Before Barron, Circuit Judge, and Saris, District Judge.

Bryan Killian, with whom Duke K. McCall, III, Douglas A. Hastings, Morgan, Lewis & Bockius LLP, Dan Vineyard, Jennifer Caughey, and Jackson Walker LLP, were on brief, for appellants CNA Holdings LLC, et al. Joan M. Pepin, Attorney, Environment and Natural Resources Division, United States Department of Justice, with whom Jeffrey Bossert Clark, Assistant Attorney General, Eric Grant, Deputy Assistant Attorney General, Michael T. Gray, Attorney, Jerome W. MacLaughlin, Attorney, Phillip R. Dupré, Attorney, Susan Forcier, Deputy Chief Legal Counsel, Rhode Island Department of Environmental Management, Joy Sun, Eve S. Vaudo, EPA Region 1 Office of General Counsel, Michael L. Casillo, Litigation Attorney, Air Force Legal Operations Agency, and Genifer M. Tarkowski, Attorney, Naval Litigation Office, were on brief, for appellees United States, et al. Joseph W. Hovermill, with whom Joseph L. Beavers, Alexander P. Creticos, Miles & Stockbridge P.C., Christopher A. Duggan, H. Reed Witherby, and Smith Duggan Buell & Rufo LLP, were on brief, for appellees Emhart Industries, Inc., et al.

February 17, 2021

 Judge Torruella heard oral argument in this matter and participated in the semble, but he did not participate in the issuance of the panel's opinion in this case. The remaining two panelists therefore issued the opinion pursuant to 28 U.S.C. § 46(d).  Of the District of Massachusetts, sitting by designation.

BARRON, Circuit Judge. This is an appeal by three

companies -- CNA Holdings LLC, Exxon Mobil Corporation, and Union

Oil Company of California -- that seek to vacate a consent decree

("the Decree") to which they were not parties but that had been

entered into by the U.S. Department of Defense, the U.S. Department

of the Air Force, and the U.S. Department of the Navy ("the federal

agencies"); Emhart Industries; the U.S. Environmental Protection

Agency ("EPA"); and the State of Rhode Island. The Decree settled

claims involving those parties under the Comprehensive

Environmental Response, Compensation, and Liability Act ("CERCLA")

and Rhode Island law regarding the responsibility for, and the

allocation of the costs of, the cleanup of a contaminated Superfund

site located in North Providence, Rhode Island ("the Site"). But,

the Decree also purported to do something of direct import for the

appellants: bar their own CERCLA claims against Emhart and the

federal agencies pertaining to the allocation of the costs of

cleaning up the Site. In seeking to overturn the District Court's

approval of the Decree, the appellants contend that it was improper

as a matter of law and that, in any event, the District Court

abused its discretion in approving it, because it failed

meaningfully to review it before doing so. We disagree and thus

affirm the District Court's ruling approving the Decree.

- 3 -

I.

A.

Beginning in the 1940s,1 Metro Atlantic (the corporate

predecessor to Emhart Industries)2 manufactured textile chemicals

on nine acres on a peninsula in North Providence, Rhode Island

("the Source Area"). Emhart Indus., Inc. v. New Eng. Container

Co. (Phase I), 130 F. Supp. 3d 534 , 538, 541, 542 n.18 (D.R.I.

2015). During some of those years, the company produced

hexachlorophene ("HCP") there , id. at 542, and, in the process of

manufacturing it, released 2,3,7,8-tetrachlorodibenzo-p-dioxin

("2,3,7,8-TCDD") into the ground in the Source Area and the nearby

Woonasquatucket River , id. at 540. New England Container Company ("NECC") operated a

business reconditioning 55-gallon drums on a portion of the Source

Area beginning around 1952. Id. at 542, 547. Various entities,

including Metro Atlantic and the Department of Defense, sent drums

to NECC to be reconditioned. Id. at 547. The drums often contained

1 Our recitation of the facts is drawn from the District Court's findings of fact and conclusions of law from the first two phases of the bench trial below. See Emhart Indus., Inc. v. New Eng. Container Co. (Phase II), 274 F. Supp. 3d 30 (D.R.I. 2017); Emhart Indus., Inc. v. New Eng. Container Co. (Phase I), 130 F. Supp. 3d 534 (D.R.I. 2015). 2At the time, Metro Atlantic was called the Atlantic Chemical Company. Since the initiation of this litigation, Black & Decker, Inc., Emhart's successor-in-interest, has been added as a party. We will refer to "Emhart" only for simplicity.

- 4 -

residues of the chemicals that they had carried prior to their

refurbishment. Id.

In 1996, the EPA discovered fish contaminated with

dioxin in the Woonasquatucket River. Id. at 541. Of all the

contaminants subsequently discovered at the Site, 2,3,7,8-TCDD was

not only the most toxic dioxin but also one of the most toxic

substances of any kind. Id. at 540 n.11.

In investigating the Site, the EPA identified the Source

Area as the epicenter of the contamination. Id. at 541-42. In

1999 and 2000, the EPA issued notices of potential liability for

that contamination to NECC and Emhart, respectively, as

potentially responsible parties under section 107(a) of CERCLA.

In 2000, moreover, the agency placed the Site, which consisted of

a three-mile stretch of the Woonasquatucket River and the

surrounding area, on its National Priorities List ("NPL") for

cleanup under CERCLA. Id. at 541. B.

CERCLA "grants the President broad power to command

government agencies and private parties to clean up hazardous waste

sites." Key Tronic Corp. v. United States, 511 U.S. 809 , 814

(1994). The statute provides that when there is a "release or

substantial threat of release" of "any hazardous substance," or

"any pollutant or contaminant" that "may present an imminent and

- 5 -

substantial danger to the public health or welfare," the EPA3 is

authorized to "remove or arrange for the removal of, and provide

for remedial action relating to such hazardous substance,

pollutant, or contaminant at any time . . . or take any other

response measure consistent with" the statutory scheme. 42 U.S.C.

§ 9604(a)(1).

Sites for which the EPA has determined that the need for

such a response action is "urgen[t]" are listed on the NPL. See

42 U.S.C. § 9605(a)(8)(A)-(B); United States v. Gen. Elec. Co.,

670 F.3d 377 , 381 n.3 (1st Cir. 2012); Bd. of Regents of Univ. of

Wash. v. EPA, 86 F.3d 1214 , 1217 (D.C. Cir. 1996). The NPL must

be "revise[d] . . . no less often than annually." 42 U.S.C.

§ 9605(a)(8)(B).

To select a response action for a site, the EPA conducts

both a remedial investigation and a feasibility study. See 40

C.F.R. § 300.430(a)(2); Carson Harbor Vill., Ltd. v. County of Los

Angeles, 433 F.3d 1260 , 1267-68 (9th Cir. 2006); see also CPC

Int'l, Inc. v. Northbrook Excess & Surplus Ins. Co., 962 F.2d 77 ,

79 (1st Cir. 1992) (describing the remedial investigation and

feasibility study as a "predicate to necessary remediation"). In

the remedial investigation phase, the EPA evaluates the need for

3Much of the authority granted to the President under CERCLA has been delegated to the EPA. See Kelley v. EPA, 15 F.3d 1100 , 1103 (D.C. Cir. 1994) (citing Exec. Order No. 12,580 § 1(b)(1), 52 Fed. Reg. 2923, 2923 (Jan. 23, 1987)).

- 6 -

a response action and collects the information necessary to assess

the possible response actions that could be taken. 40 C.F.R.

§ 300.430(d)(1).

The EPA is required to select a response action that is

"protective of human health and the environment," will "maintain

protection over time," and will "minimize untreated waste." Id.

§ 300.430(a)(1)(i). To that end, the EPA conducts a feasibility

study that, based on the data gathered in the remedial

investigation, assesses possible response actions against a range

of criteria, including cost, complexity, environmental impact,

benefits to human health, and state and community buy-in. See id.

§ 300.430(e)(7), (9). In that study, the EPA identifies a preferred response

action and opens it to public comment. See id.

§ 300.430(f)(1)(ii). Based on the public comments that the EPA

receives and its own analyses, the EPA then selects a response

action. Id. § 300.430(f)(4)(i). The EPA also at that point

compiles the documents that formed the basis for its selection of

the response action in an administrative record that includes the

Record of Decision ("ROD"). Id. §§ 300.430(f)(5)(i), 300.800(a). The response action that the EPA selects can be carried

out by the EPA itself; alternatively, the EPA can order

"responsible parties" under section 107(a) of CERCLA to carry it

out. Key Tronic Corp., 511 U.S. at 813-14 ; see also 42 U.S.C.

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§ 9607(a). CERCLA addresses how the costs of carrying out the

response action may be allocated among responsible parties.

For "four broad classes" of responsible parties,

including any corporation "who at the time of disposal of any

hazardous substance owned or operated any facility at which such

hazardous substances were disposed of," "CERCLA imposes strict

liability for environmental contamination." Burlington N. & Santa

Fe Ry. Co. v. United States, 556 U.S. 599 , 608-09, 608 n.5 (2009)

(quoting 42 U.S.C. § 9607(a)). Moreover, CERCLA provides that any

given responsible party can be held liable by the EPA for the

entire cost of carrying out the response action. Id. at 614-15. Where there are multiple responsible parties, however,

a "CERCLA defendant[] seeking to avoid joint and several liability

bear[s] the burden of proving that a reasonable basis for

apportionment exists." Id. at 614. In addition, even where the

harm is not susceptible to apportionment, CERCLA "permit[s] . . .

private parties [who are themselves responsible parties] to

recover cleanup costs and seek contribution from [other]

responsible parties" for carrying out the response action. City

of Bangor v. Citizens Commc'ns Co., 532 F.3d 70 , 90 (1st Cir.

2008).

Specifically, a responsible party may seek cost recovery

under section 107, see 42 U.S.C. § 9607, or contribution under

section 113, see 42 U.S.C. § 9613, against any other responsible

- 8 -

party. Section 107(a) "allows for full recovery of costs," United

States v. Davis, 261 F.3d 1 , 29 (1st Cir. 2001), by a responsible

party from other responsible parties, unless the harm can be

apportioned in a manner that would preclude such full recovery,

Burlington N. & Santa Fe Ry. Co., 556 U.S. at 614-15 . Section

113(f)(1), by contrast, allows a responsible party to seek

contribution from other responsible parties for costs incurred in

carrying out a response action subject to the allocation of those

costs by a court "using such equitable factors as the court

determines are appropriate." 42 U.S.C. § 9613(f)(1).

Additionally, a party who is held liable under section 107(a) as

a responsible party can petition the President under section

106(b)(2) of CERCLA to recover reasonable costs associated with

its carrying out the remedy that the EPA ordered it to perform to

clean up a site , id. § 9606(b)(2)(A), if that responsible party

can establish that the response action that the EPA required was

"arbitrary and capricious or otherwise not in accordance with law,"

id. § 9606(b)(2)(D).

There is one further piece of this intricate legislative

framework that bears on the issues before us. CERCLA contemplates

the possibility that one or more responsible parties will choose

to settle with the United States. Indeed, "early

settlement[] . . . is an integral part of the statutory plan."

See United States v. Cannons Eng'g Corp., 899 F.2d 79 , 92 (1st

- 9 -

Cir. 1990). CERCLA provides in this connection that a party that

"has resolved its liability to the United States or a State in

a[] . . . judicially approved settlement shall not be liable for

claims for contribution regarding matters addressed in the

settlement." 42 U.S.C. § 9613(f)(2). When such a settlement is

entered, it "reduces the potential liability of the [nonsettling

parties] by the amount of the settlement," id., instead of by the

settling parties' equitable share of the contamination, and thus

can lead to "disproportionate liability" for nonsettlors, Cannons,

899 F.2d at 91 .

C.

Between 2000 and 2003, the EPA issued various

administrative orders directing NECC, Emhart, and others to

undertake response actions at the Site to effectuate its cleanup.

In 2006, Emhart filed cost recovery and contribution claims under,

respectively, CERCLA sections 107(a) and 113(f)(1) against NECC

(as a responsible party) and its insurers. Phase I, 130 F. Supp.

3d at 538. Emhart alleged in those claims that it had incurred

various costs in carrying out the EPA's administrative orders

setting forth the response actions and that it expected to continue

to accrue costs in doing so in future response actions.

In 2011, Emhart filed another set of cost recovery and

contribution claims under those respective provisions of CERCLA in

connection with the cleanup of the Site. Id. This time, the

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claims were against the federal agencies , id., as well as the

United States as the party that "controls" them. Emhart alleged

that the federal agencies were themselves responsible parties

under section 107(a) of CERCLA, because they had shipped drums

carrying toxins to NECC during the time period in question. See

id. at 540-41. Emhart alleged in its complaint that while the EPA had

not yet determined how the Site should ultimately be remediated,

it believed that the EPA ultimately would "demand that Emhart

undertake additional remedial work at the Site potentially costing

hundreds of millions of dollars." The United States

counterclaimed, both on behalf of the federal agencies -- as

responsible parties in their own right -- for contribution under

section 113(f)(1) of CERCLA and on behalf of the EPA for cost

recovery under section 107(a) of that statute. Phase I, 130 F.

Supp. 3d at 538.

In 2012, Emhart's CERCLA suit against the EPA and the

federal agencies was consolidated with its CERCLA suit against

NECC and its insurers. Id. at 538 n.3. Later that year, the

United States, on behalf of the EPA and the federal agencies,

brought CERCLA claims for both cost recovery and contribution in

connection with that pending litigation against a collection of

third-party defendants -- namely, various companies that had sent

- 11 -

drums to NECC for reconditioning at the Site. Those third-party

defendants included each of the appellants here.4

Also in 2012, the EPA issued the ROD ("the 2012 ROD")

for the Site. Id. at 601. The 2012 ROD identified the agency's

selected response action (which encompassed a number of discrete

remedial and removal actions) for the Site going forward. It also

described the facts, analyses, and policy considerations the EPA

had accounted for in its remedy-selection process. See id.; Emhart

Indus., Inc. v. New Eng. Container Co. (Phase II), 274 F. Supp. 3d

30 , 42 (D.R.I. 2017). The ROD estimated the total outstanding

cost associated with implementing the response action going

forward at over $100 million. Phase I, 130 F. Supp. 3d at 601-

02.

In 2014, the EPA issued a Unilateral Administrative

Order ("UAO"). Phase II, 274 F. Supp. 3d at 79 . The UAO directed

Emhart to perform the response action designated in the 2012 ROD.

Id. By the time the UAO issued, the parties to the consolidated

CERCLA litigation involving the EPA, Emhart, the NECC, the federal

agencies, and the other companies accused of sending drums to the

Site were already engaged in discovery. The District Court then

Eventually, Emhart also filed CERCLA cross-claims against 4

the third-party defendants, including appellants, each of which has since brought cross-claims against Emhart under CERCLA. CNA Holdings has also filed CERCLA counterclaims against the United States.

- 12 -

entered a case management order providing that this litigation

would proceed in three phases.

The first phase would determine whether Emhart and NECC

were liable under section 107(a) of CERCLA as responsible parties,

including whether they were jointly and severally liable or whether

the harm that each had caused was subject to apportionment. The

second phase would address the response action that the EPA had

ordered Emhart to carry out in the UAO and how it would impact

parties ultimately deemed to be responsible parties under CERCLA,

whomever they might be. The third and final phase, "if required,"

would address the liability as responsible parties under CERCLA of

the third-party defendants -- and thus of the appellants -- as

well as the amount of money each would have to pay given the

pending CERCLA claims for cost recovery and contribution involving

them. The District Court stayed the third-party defendants'

obligations to take or submit discovery but provided that the

third-party defendants could attend the depositions and review the

documents produced in discovery for the first two phases.

In the case management order, the District Court stated

that it would "not rule on the liability of the [Department of

Defense], or its amount in contribution, if any, until the third

phase." Phase I, 130 F. Supp. 3d at 539. Even still, that order

instructed that "[a]ll evidence pertaining to the [the Department

of Defense's] liability for contamination of the Site [would] be

- 13 -

presented during the first phase . . . of the trial." Id. The

District Court explained that "the evidence [would] be used solely

to determine the liability of Emhart and NECC and whether this

liability (if proven) is divisible among the two parties." Id.

D. Shortly before Phase I of the trial began, NECC settled

its claims with the federal parties. Id. The District Court approved and entered a consent decree reflecting that settlement.

Id. That consent decree provided NECC with protection against

contribution claims under CERCLA by any other responsible party in

connection with the Site. It thus resulted in the dismissal of

all of the pending CERCLA claims between Emhart, NECC, and NECC's

insurers. Id. at 539 & n.6.

In light of these developments, the first phase of the

trial focused on Emhart's liability under CERCLA as a responsible

party. Id. at 539 . That first phase was completed following a

twenty-day bench trial in May and June 2015. Id. at 540 .

Emhart's frontline position in that trial was that it

was not a responsible party under CERCLA. Id. Emhart also

advanced an argument in the alternative, however. It contended

that, even as a responsible party, it was not jointly and severally

liable for the costs of the entire cleanup of the Site under CERCLA

because its liability could be apportioned with NECC's. Id. At

the same time, though, Emhart continued to maintain its CERCLA

- 14 -

claims against the federal agencies for both cost recovery and

contribution. Id.

At the end of Phase I, the District Court concluded that

Emhart was jointly and severally liable under section 107(a) of

CERCLA as a responsible party. Id. at 602. The District Court

then went on to hold that Emhart had not proved by a preponderance

of the evidence that the barrels that the Department of Defense

sent to the Source Area contained toxic substances. Consequently,

the District Court rejected Emhart's CERCLA claims for both

contribution and cost recovery against the federal agencies. Id.

Phase II of the consolidated litigation then began. The

District Court conducted a thirteen-day bench trial that came to

an end in January 2017. Phase II, 274 F. Supp. 3d at 37 n.2. At

the trial, the District Court admitted evidence, accepted post-

trial briefing, and heard oral argument concerning the response

action that the EPA had ordered Emhart to carry out in the UAO.

Id.

The District Court again noted during Phase II that

"[t]he necessary contributions, if any, of third-party defendants

[would] be addressed in Phase III of the trial." Id. at 38. Accordingly, Phase II focused on whether the EPA's "remedy-

selection process," as reflected in the 2012 ROD, for the response

action Emhart had been ordered to carry out in the UAO "was

- 15 -

arbitrary, capricious, or otherwise not in accordance with law."

Id. at 37-38. That response action required, among other things,

removal of buried waste and contaminated sediment from the Source

Area, disposal of those materials, installation of a hazardous-

waste cap and soil cover, and long-term monitoring and maintenance.

Id. at 52-53, 52 n.23. The technical requirements for the landfill

cap were derived from Subtitle C of the Resource Conversation and

Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq., and thus called

for a specialized landfill cap in order to prevent toxins from

seeping into the groundwater and contaminating nearby bodies of

water. See Phase II, 274 F. Supp. 3d at 51 n.17. We will refer,

following the parties, to this cap as the "RCRA C cap."

The District Court noted that, with respect to the

response action that Emhart was ordered to carry out in the UAO,

Emhart had "argue[d] that several of EPA's individual actions and

decisions along the way were either arbitrary, capricious, or not

in accordance with CERCLA." Phase II, 274 F. Supp. 3d at 53 .

Indeed, Emhart challenged the response action on a host of

different grounds. See id. at 53-80. The District Court did find

that "[a]s a general matter, . . . EPA followed the basic steps

mandated by CERCLA and the [National Contingency Plan] in

developing its remedial action for the Site." Id. at 53. Nevertheless, the District Court found that Emhart had

- 16 -

successfully established, on the then-current record, as reflected

in the 2012 ROD, that several distinct decisions the EPA made in

its remedy-selection process were, per CERCLA, arbitrary,

capricious, or otherwise not in accordance with law. Id. at 80. Consequently, the District Court stayed the UAO compelling Emhart

to carry out the response action documented in the 2012 ROD until

"th[ose] matters [were] resolved." Id. at 81. As to how the EPA could go about solving those problems,

the District Court explained that it could "envision several ways

EPA could approach the[] deficiencies." Id. One possibility the District Court contemplated was that the EPA might decide the best

path forward was to "reopen the remedial investigation and

feasibility study process." Id. The District Court ultimately

took "no view as to the appropriate course of action" and left it

"to EPA to address these issues in the first instance," while

retaining jurisdiction over the matter to ensure they were properly

handled. Id.

Two months later, the United States, on behalf of the

EPA, filed a motion for reconsideration of the District Court's

ruling concerning the response action at issue. The United States

noted that the EPA had made "hundreds of decisions" in selecting

the response action and that, "[a]fter the lengthy trial and months

of painstaking analysis, and post-trial briefs totaling over 900

pages," the District Court had "narrowed the number of alleged EPA

- 17 -

errors down to three." The United States argued that "the

Administrative Record support[ed] EPA's determinations on all

three issues" and that, even if those three decisions were

erroneous, "the record show[ed] that correcting the alleged errors

would have made no difference in the selection of the remedy."

In June 2018, while the EPA's motion for reconsideration

was still pending, the State of Rhode Island filed various claims

against Emhart under CERCLA and state environmental laws, see R.I.

Gen. Laws §§ 23-18.9-10, 23-19.1-22. That action was consolidated

with the pending litigation in the District Court on July 6.

E.

Three days later, on July 9, 2018, the United States and

the State of Rhode Island lodged a proposed version of the Decree

with the District Court. The proposed decree would have resolved

all claims regarding the Site by the EPA and the federal agencies

against Emhart under CERCLA, by Rhode Island against Emhart under

CERCLA and R.I. Gen. Laws §§ 23-18.9-1 et seq., 23-19.1-1 et seq.,

and 23-19.14-1 et seq., and by Emhart against the EPA and the

federal agencies under CERCLA, subject to certain standard

reservations.

The proposed decree also required Emhart to pay the

governments' unrecovered costs for the past cleanup. Those past

costs totaled approximately $42 million; the anticipated costs

associated with the remaining cleanup at that point were $96

- 18 -

million. Additionally, under the proposed decree, Emhart agreed

"to perform the remedy EPA selected in the 2012 ROD for the Site."

It was accompanied by a Statement of Work ("SOW"), which added

further detail as to how Emhart had promised to implement that

response action. For example, under the SOW, Emhart would be

permitted "to investigate and propose for EPA's consideration

potential modifications to the remedy."

With respect to the federal agencies, the proposed

decree provided that they collectively would pay $550,000 to

"resolve any liability they may have in connection with the Site."

Moreover, both Emhart and the federal agencies would "receive

protection from contribution actions or claims as provided in

Section 113(f)(2) of CERCLA . . . for the defined matters

addressed by the Consent Decree." The United States also indicated

that it intended to dismiss its CERCLA claims for cost recovery on

behalf of the EPA and its CERCLA claims for contribution on behalf

of the federal agencies against the third-party defendants,

including appellants (although Emhart made no such commitment).

Then, in September of 2018, after opening the proposed

decree for public comment, the United States and Rhode Island

jointly filed a motion for entry of the Decree. In the motion,

the United States and Rhode Island argued that the Decree was

"fair, reasonable, and consistent with the goals of CERCLA."

- 19 -

Appellant CNA Holdings filed a motion in opposition,

along with other third-party defendants, including the two other

appellants here. The third-party defendants objected on two

grounds relevant to the issues we must decide on appeal: (1) that

the proposed decree called for implementation of a remedy that was

the same as the one required by the response action that the

District Court had previously held was arbitrary and capricious

under CERCLA, thereby rendering the Decree itself inconsistent

with CERCLA; and (2) that the proposed decree was "not

substantively fair" as a whole because no justification was

provided for setting the federal agencies' payment at $550,000,

such that the Decree could not be approved.

Emhart and the United States both filed motions in

response. The District Court then held a hearing on the question

of whether to approve the proposed decree. A few weeks later, on

April 8, 2019, the District Court entered an order approving the

Decree. The District Court explained that "[a]fter a thorough

review of the 2012 Record of Decision, Consent Decree, Statement

of Work, the United States' Motion for Reconsideration, all

parties' briefing related to the Consent Decree, and the

representations made at the March 19, 2019 hearing," it had

concluded "that the remedial action described in the ROD, when

viewed in light of how the Statement of Work and Consent Decree

propose to effectuate that remedial action, is not inconsistent

- 20 -

with CERCLA and the National Contingency Plan." (citations

omitted). The District Court further held that "none of the

arguments presented by Third-Party Defendants in their Oppositions

poses an obstacle to approving the . . . Decree at this time."

The District Court thus vacated its Phase II decision and approved

the Decree. Finally, the District Court found that there was "no

just reason for delay" and certified its decision as final within

the meaning of Federal Rules of Civil Procedure 54 and 58.

Three of the third-party defendants -- CNA Holdings LLC,

Exxon Mobil Corporation, and Union Oil Company of California --

filed a timely notice of appeal on May 31, 2019. See Fed. R. App.

P. 4(a)(1)(B). We have jurisdiction under 28 U.S.C. § 1291.

II.

The appellants put forth three grounds for rejecting the

District Court's approval of the Decree. We first address their

assertion that it was an abuse of discretion for the District Court

to approve the Decree because it incorporates a remedy that is

identical to the response action the EPA selected in the 2012 ROD

that the District Court had determined was "arbitrary and

capricious" under CERCLA. We then address the appellants'

contention that the District Court erred in approving the Decree

because the fact that it required the federal agencies to pay only

$550,000 to protect themselves from liability rendered it

"substantively unfair." Finally, we turn to the appellants'

- 21 -

argument that the District Court erred in approving the Decree by

failing meaningfully to review it.5

The District Court's approval of the Decree "is encased

in a double layer of swaddling." Cannons, 899 F.2d at 84 . The

first layer inheres in the standard of review a district court

must itself apply in deciding whether to approve a consent decree

settling claims under CERCLA involving the United States, as that

standard "implicates the trial court's deference to the agency's

expertise and to the parties' agreement." Id. Under this

standard, a district court may approve such a consent decree only

if it is "reasonable, faithful to the statute's objectives, and

fair (both procedurally and substantively)." United States v.

Charles George Trucking, Inc., 34 F.3d 1081 , 1084 (1st Cir. 1994).

5 Though no party has argued otherwise, we note that the appellants' claims are justiciable. Given that the appellants have plausibly pled valid cost recovery and contribution claims against Emhart and the federal agencies that will be extinguished pursuant to the Decree, they have a cognizable interest in the Decree's approval and entry that gives them standing to appeal. See City of Bangor, 532 F.3d at 92-93 . Moreover, appellants' rights to pursue their claims against Emhart and the federal agencies were directly affected by the District Court's decision. The fact that the precise amount they may one day be required to pay is not yet set does not affect our analysis of the legal dispute before us, which determines whether they will be able to bring those claims at all. Thus, the nature of this dispute is neither "premature" nor "abstract," McInnis-Misenor v. Me. Med. Ctr., 319 F.3d 63 , 70 (1st Cir. 2003) (quoting Abbott Lab'ys v. Gardner, 387 U.S. 136 , 148 (1967)), but is instead ripe for our review.

- 22 -

"The second layer of swaddling derives from the nature

of appellate review." Cannons, 899 F.2d at 84 . We "will overturn

a district court's decision to approve the entry of a CERCLA

consent decree in a case involving the United States 'only for

manifest abuse of discretion.'" City of Bangor, 532 F.3d at 93 -

94 (quoting Charles George Trucking, 34 F.3d at 1085 ). To meet

that standard, the objectors must establish that "the lower court

made a serious error of law or suffered a meaningful lapse of

judgment." Charles George Trucking, 34 F.3d at 1085 .

A.

We start with the appellants' contention that the

District Court erred in approving the Decree because it requires

Emhart to implement a remedy that is identical to the response

action that the EPA selected in the 2012 ROD and that the District

Court found to be, at least in part, arbitrary and capricious under

CERCLA in Phase II of the consolidated litigation. See 42 U.S.C.

§ 9613(j)(2). In pressing this argument, the appellants do not

contend that, in making that determination, we must confine

ourselves to a consideration of only the administrative record

that was then in place. Indeed, the appellees reference, in

support of there being a sound basis for the remedy, not only the

2012 ROD, but also the explanations for the response action

identified in the 2012 ROD that the EPA offered in the course of

the Phase II litigation. They also reference the information that

- 23 -

the EPA submitted to the District Court when it sought approval of

the Decree, as well as the Decree itself. Yet, the appellants

make no argument that these additional materials, which were not

part of the administrative record at the time of the Phase II

litigation, fall outside the relevant record for purposes of our

review of the District Court's approval of the Decree.

Accepting this understanding of the relevant record in

this appeal, we reject the appellants' challenge to the District

Court's decision to approve the Decree insofar as it rests on the

District Court's Phase II ruling that the response action there at

issue was arbitrary and capricious under CERCLA. We emphasize

that, in doing so, we assume, to the appellants' benefit, that the

District Court did not err in determining in the Phase II

litigation that the response action at issue there was arbitrary

and capricious. For, as we will explain, that ruling does not

itself provide a basis for concluding that the District Court

abused its discretion in holding that the Decree, despite its

inclusion of a remedy that mirrored that response action, was

"reasonable, fair, and consistent with the purposes that CERCLA is

intended to serve.'" Cannons, 899 F.2d at 85 (quoting H.R. Rep.

No. 253, pt. 3, at 19 (1985)); see also id. at 85-86 (noting that

Congress intended for us to "take a broad view of proposed

settlements" and leave "highly technical issues . . . to the

discourse between [the settling] parties").

- 24 -

1.

The appellants first ask us to focus on the Decree's

requirement to install the RCRA C cap. As we have explained, the

response action the EPA selected in the 2012 ROD also included

such a requirement. The appellants argue that this component of

the Decree's remedy is inconsistent with CERCLA, such that the

Decree as a whole is, because it is predicated on restoration goals

that the EPA set for the Source Area's drinking water during the

remedy-selection process documented in the 2012 ROD which the

appellants contend are flawed. As support for that argument, they

note that the District Court invalidated the requirement to install

a RCRCA C cap in the earlier response action as "arbitrary and

capricious" during Phase II, because it determined that it was

predicated on those restoration goals, which it found were

unsupportable.6 But, we are not persuaded by this challenge to

the District Court's decision to approve the Decree.

The appellants are right that, in selecting the 2012

response action that included the requirement to install such a

RCRA C cap, the EPA classified the groundwater at the Source Area

as "a potential source of drinking water." Phase II, 274 F. Supp.

3d at 65. They are also right that, in Phase II of the consolidated

6At oral argument, counsel for appellants confirmed that they only object to the groundwater classification insofar as it influenced the EPA's decision to require a RCRA C cap in the remedy.

- 25 -

litigation, the District Court concluded that it was

"overwhelmingly clear" that, at that time, "the Source Area

groundwater [was] . . . far too contaminated to provide a source

of drinking water" and that it would be unrealistic to expect much

change on that front. Id. at 66. Additionally, as the appellants rightly note, the

District Court found at that time that, as a result of that

classification, the EPA "adopt[ed] stricter cleanup goals for the

Source Area groundwater" than it otherwise would have. Id. at 65. The appellants are right as well that it was on those grounds that

the District Court then concluded in Phase II that the drinking

water classification was arbitrary and capricious because the EPA

had "not collected sufficient information or conducted sufficient

analysis" to support its conclusion that the groundwater could one

day be potable. Id. at 67. And, finally, the appellants are

correct that the District Court concluded that the cap was likewise

arbitrary and capricious because, judging from the 2012 ROD, the

decision to require it appeared to be "inextricably intertwined"

with the groundwater goals. Id. at 68. But, the District Court explained in its Phase II ruling

that it did not take issue with the EPA imposing a RCRA C cap

requirement per se. Id. Instead, it expressly raised the

possibility that the EPA might be able to justify the RCRA C cap

- 26 -

requirement by establishing that it was "necessary regardless of

EPA's groundwater remediation goals." Id.

That is significant for present purposes because the

record that was before the District Court at the time that it

approved the Decree -- and thus the one that we now consider --

includes a motion from the EPA highlighting various aspects of its

decision-making process that demonstrate that it had concluded as

of the time that the District Court reviewed the Decree that the

RCRA C cap requirement was appropriate to include notwithstanding

the District Court's groundwater ruling. Specifically, the EPA

explained that, even though the RCRA C cap would help facilitate

groundwater cleanup, that fact "was additive to the already

existing reasons that a RCRA C cap was appropriate" and that it

intended to require the RCRA C cap for other, independent reasons

as well.

The EPA then recounted some of those considerations. It

explained that "the justifications for the RCRA C cap include

better protection against scour and erosion from flooding,

physical containment of contaminated soils, and more reliable and

robust long term protection." The EPA also pointed out that,

regardless of its plans for the groundwater, it could only leave

certain chemicals in place in the Source Area if they were under

a cap that "complie[d] with the requirements of Subtitle C of

RCRA."

- 27 -

Moreover, the EPA reinforced those representations

during the hearing that the District Court held on the Decree

itself. When the District Court asked the EPA's counsel about

whether the existence of the Decree "change[d] the fact that [the

court had] found in Phase II" that the 2012 ROD was arbitrary and

capricious, the attorney referred the District Court to its motion

for reconsideration in which it had listed the independent reasons

for requiring the RCRA C cap. The EPA's counsel also stated at

that time that it was the EPA's position that the RCRA C cap was

"required anyway regardless of the groundwater issues." And,

indeed, in response, the District Court noted that, based in part

on those representations, "the landscape ha[d] significantly

changed from where it was at the close of the evidence" in Phase

II.7

We also find it significant that the SOW attached to the

Decree provided that the EPA and the settling parties anticipated

potentially reclassifying the Source Area groundwater. In

general, the EPA defers to state groundwater classification

guidelines when developing response actions in states with

The EPA did also argue in its motion for reconsideration 7

and in the hearing on the Decree that its initial 2012 ROD was not flawed. But, the agency's representations there still inform our understanding of its justifications for including the remedy in the Decree that is before us today, even if it separately believed the same remedy was justified on the record contained in the 2012 ROD.

- 28 -

approved schemes. See U.S. Env't Prot. Agency, OSWER Directive

No. 9283.1-09, The Role of CSGWPPs in EPA Remediation Programs

(1997), 1997 WL 1068504 . At the time of the Phase II litigation

and when the Decree was approved, Rhode Island did not have an

approved state classification scheme, so the EPA used the federal

one. Thus, the EPA categorized the Source Area's water as a

potential source of drinking water even though the Rhode Island

Department of Environmental Management "considered the Source Area

groundwater to be so contaminated" as to be "unsuitable for

potential use as drinking water." Phase II, 274 F. Supp. 3d at

64.

In the SOW, however, the EPA and the settling parties

noted that they would consider reclassifying the groundwater

pursuant to Rhode Island's scheme in the event that it was

approved. Despite contemplating the possibility of that change,

the SOW did not provide that the RCRA C cap requirement might be

eliminated. Instead, the Decree required the RCRA C cap regardless

of whether the groundwater was recategorized.

Thus, we see no basis for concluding that the requirement

to include a RCRA C cap in the remedy in the Decree was a function

of the EPA's groundwater remediation goals. Indeed, the appellants

acknowledge that there are other, valid reasons for which the EPA

might have decided to require a RCRA C cap, groundwater goals

aside.

- 29 -

The appellants do contend that we cannot be sure the EPA

would have required the RCRA C cap in the 2012 response action

absent the groundwater classification. But, that is beside the

point. The question for present purposes is not whether the

inclusion of the requirement to install a RCRA C cap in the

response action set forth in the 2012 ROD was arbitrary and

capricious. The question is whether the inclusion of that

requirement in the remedy set forth in the Decree renders it an

abuse of discretion for the District Court to have approved it.

Given the reasons the record reveals for concluding that, at the

time of the inclusion of the RCRA C cap requirement in the remedy

in the Decree, that requirement was justified for reasons unrelated

to the groundwater goals, we see no basis for concluding that it

was.

To be sure, the District Court had earlier determined,

on the basis of the record then before it, that it was arbitrary

and capricious to include that requirement in the response action.

But, that was then, and what matters is what the record that is

now before us reveals about the basis for the District Court's

approval. Thus, the appellants' first ground for contending that

we must vacate the Decree fails.

2.

The appellants next object that the District Court abused its

discretion in approving the Decree based on the fact that the EPA,

- 30 -

in selecting the response action in the 2012 ROD that the Decree

mirrors, used findings about the effect of the contaminants on the

fish population in Allendale Pond and other bodies of water in the

Source Area that the appellants contend are inaccurate. The

appellants point out that the District Court determined in the

Phase II litigation that those findings were unsupportable on the

record before it, rendering the response action based on them

arbitrary and capricious under CERCLA.8

In accord with the structure of the challenge to the Decree

that we have just rejected above, see supra Section II.A.1, the

8 In Phase II, Emhart challenged the fish consumption estimates that the EPA employed in its baseline risk assessment in several respects. In doing so, Emhart challenged, among other things, the EPA's assumptions that no largemouth bass would be consumed from Allendale Pond and that certain populations would consume fourteen grams of fish per day from the Site. See Phase II, 274 F. Supp. 3d at 78. In particular, Emhart argued that, by assuming that white suckers and eels, rather than bass, would be consumed from Allendale Pond, the EPA "skew[ed] its risk calculations" because "white suckers are 'bottom dweller[s]' and thus likely to have larger body burdens of chemical contaminants" and that eels likewise contained high concentrations of dioxin relative to other species. Emhart also took issue with the fact that the EPA assumed that individuals who consumed eels and white suckers would eat the entire fish but that individuals who consumed bass would eat just the less-contaminated fillet, further compounding the effects of assuming the absence of bass. The District Court ultimately concluded that "Emhart ha[d] demonstrated that [the EPA's] misstep [in assuming no bass would be consumed] arbitrarily increased the risk calculation for Allendale Pond." Phase II, 274 F. Supp. 3d at 78. The District Court further concluded that while the EPA "may ultimately determine that fourteen grams is the appropriate reasonable maximum consumption rate at the Site," on the record that was before the District Court, the EPA's decision to use that estimate was arbitrary. Id.

- 31 - appellants thus point to this Phase II ruling to argue that the

Decree cannot stand. For, they contend, it, like the 2012 response

action, is necessarily inconsistent with CERCLA due to its reliance

on these same flawed findings. But, we are not persuaded here

either.

When the EPA develops a response action, it uses

information like the fish population data that the appellants

contest to conduct a baseline risk assessment and set remediation

goals. See 40 C.F.R. § 300.430(d)(1), (d)(4), (e)(2)(i). Those

goals reflect "acceptable exposure levels that are protective of

human health and the environment." Id. § 300.430(e)(2)(i). Thus, if the EPA expects that local residents will catch and consume a

large number of fish from a given Superfund site, it is likely to

target cleaner water quality standards at that site in order to

keep those residents' exposure to toxins low.

In some instances where the EPA conducts such an

assessment, it will compute preliminary remediation goals and

discover that the background levels of the contaminants in the

surrounding environment are higher than the EPA's goals. Where

that is the case, the EPA will not develop a response action that

targets its original remediation goals. See U.S. Env't Prot.

Agency, OSWER Directive No. 9285.6-07P, Role of Background in the

CERCLA Cleanup Program 8-9 (2002). Instead, it will simply target

the background contaminant level, in part out of a concern that

- 32 -

the remediated areas will be recontaminated by their surroundings.

See id.

Here, in selecting the response action in the 2012 ROD,

the EPA computed its remediation goals assuming that there were no

largemouth bass in Allendale Pond and that certain populations

would consume fourteen grams of fish per day from the Site. See

Phase II, 274 F. Supp. 3d at 78. Based on those assumptions, the

EPA's remediation goal targeted a level of contamination, 0.43

parts per trillion ("ppt"), that was lower than that present in

the background environment, which was 15 ppt. As a result, the

response action that the EPA set forth in its 2012 ROD targeted

the background level of 15 ppt rather than the lower remediation

goal that was premised on the fish consumption estimates.

Thus, while the District Court found the underlying fish

consumption estimates unsupportable on the record before it during

Phase II, we do not see how that finding in and of itself bears on

whether the remedy in the Decree is problematic. Indeed, in its

motion for reconsideration in Phase II, the EPA recalculated its

remediation goal based on the alternative fish consumption

estimates that Emhart pressed in Phase II. The EPA's recalculation

resulted in a remediation goal of 2.77 ppt rather than 0.43 ppt.

But, that recalculated figure still represents a lower level of

contamination than the background level of 15 ppt. That accords

- 33 -

with the EPA counsel's representation at the hearing on the Decree

that the changed computations "didn't matter."

Thus, the appellants are unable to show that the EPA's

purportedly erroneous estimates from the 2012 ROD impacted the

Decree's remedy. Accordingly, their contention that the District

Court abused its discretion in approving the Decree, because it

impermissibly contains a remedy infected by data found to be

arbitrary and capricious in the Phase II litigation, fails.

B.

The appellants separately contend that a CERCLA consent

decree's "settlement terms must be based upon, and roughly

correlated with, some acceptable measure of comparative fault,"

even if the apportionment of the harm is "imprecise," Cannons, 899

F.2d at 87 , and that the Decree does not meet that test here. The

appellants rest this contention on the fact that the Decree

required the federal agencies to pay only $550,000 to relieve

themselves of any future liability in connection with the Site,

despite the fact that the EPA-ordered response action was estimated

to cost around $100 million. The appellants contend that, given

this gap between what the federal agencies agreed to pay for the

cleanup and the costs of the cleanup, we must find that the

District Court abused its discretion in approving the Decree. We

see no error, however.

- 34 -

We have previously noted that "no universally correct

approach" to comparative fault exists and that "[w]hatever formula

or scheme EPA advances for measuring comparative fault and

allocating liability should be upheld so long as the agency

supplies a plausible explanation for it." Id. We have such a

plausible explanation for the allocation of liability reflected in

the Decree that is at issue here.

As the EPA argued to the District Court in defending

this aspect of the Decree, the District Court in Phase I of the

litigation had "already found the [federal agencies] not liable

under CERCLA." Thus, the seemingly yawning gap between what the

federal agencies had been made to pay and their potential liability

was no gap at all. Moreover, when prompted by the District Court

as to why the Department of Defense should pay anything whatsoever,

counsel for the EPA explained that the United States was as

"concerned as any party about litigation risks" and the "litigation

costs" associated with continuing to participate in the lawsuit.

The appellants do object that "Emhart's failure to prove

the Agencies' liability during Phase I is not substantial evidence

that the Agencies' liability is insignificant." They contend that

they may still be able to establish liability where Emhart failed

and that therefore they "should get to finish discovery," which

they say "will provide EPA and the court the necessary context to

- 35 -

evaluate the [federal agencies'] proportional contribution to the

contamination at the Site."

At the hearing on the Decree, however, the District Court

explained that, "having lived through this for all these years,"

it believed "that th[e] possibility of liability by the [Department

of Defense] was litigated into the ground." Indeed, the District

Court remarked that it "c[ouldn't] imagine that . . . [any of the

third-party defendants, including appellants,] would think for a

moment that there was some potential benefit to going after the

[Department of Defense] on that theory."

Accordingly, it was neither a "harmful error of law" nor

a "meaningful error in judgment," Cannons, 899 F.2d at 84 (quoting

Anderson v. Cryovac, Inc., 862 F.2d 910 , 923 (1st Cir. 1988)), for

the District Court to accept the EPA's explanation that the federal

agencies' liability was essentially nonexistent but that the

agencies paid a settlement figure in order to precipitate the end

of their role in the litigation.9 CERCLA, after all, is designed

9 Although the appellants contended at oral argument before this Court that the District Court's decision in the Phase I proceedings only addressed the agencies' liability as to dioxin, and that they could still make out claims for contribution with regard to other chemicals, the District Court specifically rejected that argument when it ruled on the federal agencies' liability in Phase I. See Phase I, 130 F. Supp. 3d at 609 (rejecting Emhart's contention that only evidence of the agencies' liability as to dioxin had been presented because the case management order had required that "all evidence relating to the [Department of Defense's] liability, and not just evidence

- 36 -

to facilitate early settlement, which supplies a key mechanism by

which efficient cleanup of Superfund sites occurs. See Davis, 261

F.3d at 27 ("CERCLA . . . seeks to induce settlements at higher

amounts by allowing settlors to seek contribution from those who

have not yet settled."); Cannons, 899 F.2d at 92 ("Disproportionate

liability, a technique which promotes early settlements and deters

litigation for litigation's sake, is an integral part of [CERCLA's]

statutory plan.").

The appellants do allege that the federal agencies'

settlement figure was "nepotistically brokered" and that the EPA

shut them out of settlement negotiations in favor of reaching an

agreement with the federal agencies.10 They emphasize in this

regard that the District Court's case management order did stay

the appellants' ability to take discovery during Phase I and Phase

II.

But, the appellants do not dispute that they were privy

to all of the discovery Emhart conducted against the agencies in

Phase I. They also have made no proffer that could suffice to

relating to the [Department of Defense's] liability for dioxin, needed to be put forward in this phase"). 10The United States asserts that this argument is waived because the appellants did not bring a distinct objection under the heading of procedural fairness. But, procedural and substantive fairness are not entirely discrete concepts; it is "appropriate" for us "to consider the adequacy of the process" in evaluating substantive fairness. Cannons, 899 F.2d at 87 n.4.

- 37 -

show that they might succeed where others have failed. Nor was

this a consent decree between the EPA and the federal agencies

only; Emhart was also a party to it. See Charles George Trucking,

34 F.3d at 1088 ("Sophisticated actors know how to protect their

own interests, and they are well equipped to evaluate risks and

rewards.").

The lone out-of-circuit, unpublished, district court

opinion on which the appellants rely in pressing this contention

of self-dealing, United States v. Pesses, No. 90-654, 1994 WL

741277 (W.D. Pa. Nov. 7, 1994), does not convince us of its merit.

In that case, like here, the EPA entered a consent decree with

several federal agencies (as well as private parties). Id. at *4-

5. But, while the district court there refused to approve the

decree due in part to concerns about a "'sweetheart' deal" between

the EPA and those agencies , id. at *7, *15-17, it emphasized that

the EPA had failed adequately to explain the basis for the

"preferential treatment," id. at *18. For the reasons that we

have given, however, the District Court in the present case did

not abuse its discretion in finding that here the EPA did provide

such an explanation.

C.

Finally, we must address the appellants' argument that

the District Court failed to appropriately scrutinize the Decree

and instead merely rubber stamped it. They argue that the fact

- 38 -

that the order approving the Decree provides, by way of

explanation, only "a one-line assertion that, based on a 'thorough

review' of the materials, the remedy 'is not inconsistent with

CERCLA'" is evidence that the District Court failed to exercise

independent judgment. We disagree.11

We do not take the appellants to contend that the

District Court failed thoroughly to explain or consider the aspects

of the remedy in the Decree that mirrored the aspects of the

response action that it found in the Phase II litigation were not

"arbitrary and capricious." Nor would any such contention be

viable, given the District Court's meticulous opinion at that

stage. See generally Phase II, 274 F. Supp. 3d 30 . Instead, we

understand the appellants to argue that the District Court failed

adequately to explain why the aspects of the remedy embedded in

the Decree that mirrored the aspects of the response action that

it found were "arbitrary and capricious" in the Phase II litigation

were, in fact, appropriate when repackaged in the Decree.

As part of this argument, the appellants contend that the 11

District Court's decision to vacate its Phase II ruling without specifically explaining its reasons for doing so is evidence that the District Court "mistook its task" and did not exercise independent judgment. But, the appellants do not argue that the District Court lacked the power to vacate the earlier interlocutory ruling, and we do not see any reason that the District Court's choice to do so would impose a heightened requirement that the court explain its reasoning. Thus, the fact of vacatur provides no independent basis for concluding that the District Court abused its discretion.

- 39 -

First, the appellants understate the quality of the

District Court's explanation with respect to the import of its

Phase II findings as to the decision whether to approve the Decree.

In explaining that decision, the District Court catalogued the

extensive evidence that it had reviewed, including the original

remedy the EPA selected, the Decree, the SOW, the United States'

Motion for Reconsideration, the parties' briefing on the Decree,

and the parties' representations at the hearing on the Decree,

much of which post-dated the Phase II proceedings. It then

explained that it had concluded "that the remedial action . . .

when viewed in light of how the Statement of Work and Consent

Decree propose to effectuate [it], is not inconsistent with CERCLA

and the National Contingency Plan." (emphasis added). Citing to

the SOW, moreover, the District Court also specifically noted that

"[f]or example, [it] expect[ed] the parties [would] consider and

implement the reclassification of groundwater in line with the

state groundwater classification system." Then, consistent with

those conclusions, the District Court "approve[d] the Consent

Decree as fair, reasonable, and consistent with the goals of

CERCLA."

These statements indicate that the District Court

carefully considered the ways in which the record before it at the

time of its decision to approve the Decree differed from the record

before it when it ruled in the Phase II litigation on the response

- 40 -

action. They reflect, in other words, a reasoned judgment rather

than the absence of one.

Moreover, we have previously acknowledged the Supreme

Court's guidance that we ought to be "reluctant" to invalidate a

district court's entry of a consent decree "solely because the

court failed adequately to set forth its reasons or the evidence

on which they were based." United States v. Comunidades Unidas

Contra La Contaminacion, 204 F.3d 275 , 280 (1st Cir. 2000) (quoting

Protective Comm. for Indep. Stockholders of TMT Trailer Ferry,

Inc. v. Anderson, 390 U.S. 414 , 437 (1968)). As we have explained,

"unless we sense[] something deeply amiss," even where a district

court does not set forth its reasons for approving a consent decree

as is advisable, we ask only "whether the record contains adequate

facts to support the decision of the district court to approve the

proposed compromise." Id.

We see nothing deeply amiss here. The District Court

has been living with this litigation for over a decade. It is

plainly immersed in the details that bear on the remedy contained

in the Decree. See generally Phase I, 130 F. Supp. 3d 534 ; Phase

II, 274 F. Supp. 3d 30 . That "gives [us] confidence that a neutral

adjudicator, intimately acquainted with the case, has focused on

the essential criteria and found them not lacking." See

Comunidades Unidas Contra La Contaminacion, 204 F.3d at 280 .

- 41 -

III.

For the reasons that we have set forth, we affirm the

District Court's decision to approve the Decree.

- 42 -

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