USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
_________________________
Nos. 93-1691
93-2372
UNITED STATES OF AMERICA, ET AL.,
Plaintiffs, Appellees,
v.
CHARLES GEORGE TRUCKING, INC., ET AL.,
Defendants, Appellants.
_________________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
___________________
_________________________
Before
Selya and Cyr, Circuit Judges,
______________
and Zobel,* District Judge.
______________
_________________________

Richard E. Bachman, with whom John A. King and Hale,

___________________
______________
_____
Sanderson, Byrnes & Morton, were on brief, for appellants.
__________________________
John C. Cruden, with
whom Louis J. Schiffer, Acting
________________
___________________
Assistant Attorney
General, Robert
H.
Oakley, David
W.
____________________
__________
Zugschwerdt, David C. Shilton, and
Elizabeth A. Peterson,
___________
__________________
_______________________
Attorneys, U.S. Dep't of Justice, and Ruthann Sherman, Office of
_______________

Regional Counsel (EPA), for the federal appellee.

Scott Harshbarger, Attorney General, Karen McGuire and
__________________
______________
Margaret Van Deusen, Assistant Attorneys General, and Nancy
_____________________
_____
Preis, Special Assistant Attorney General, on brief for appellee
_____
Commonwealth of Massachusetts.
Paul B. Galvani, with whom Thomas H. Hannigan, Jr., Jay
_________________
_________________________ ___
Bradford Smith, and Ropes & Gray were on brief, for various
_______________
_____________
appellees.
Laurence M. Johnson, Fordham & Starrett, Michael D. Chefitz,
___________________ __________________ __________________
and Gilberg, Kurent & Kiernan, on brief for appellees Charles
___________________________
George, Jr., et al.
Mark S. Granger and Morrison, Mahoney & Miller on brief for
________________
__________________________
appellee Boston Edison Co.
_________________________
September 13, 1994
_________________________
______________
*Of the District of Massachusetts, sitting by designation.

SELYA, Circuit Judge. These

SELYA, Circuit Judge.
______________
consent

decrees that

recovery
waste site

together resolve

disputes associated

with

appeals arise out

a majority

the cleanup

in Tyngsboro, Massachusetts (the

who are the principal

of a

Site).

owners and operators of the

of the

of two

cost

hazardous

Appellants,

Site,1 strive

to

convince us

that the

district court misjudged

the relevant

goals of the Comprehensive Environmental Response, Compensation &

Liability Act
erred in

(CERCLA), 42 U.S.C.

placing its

imprimatur

9601-9675, and, therefore,

on the

decrees.

We are

not

persuaded.
I.
I.

BACKGROUND
BACKGROUND
This

litigation dates

States and the Commonwealth

back to

1985, when

the United

of Massachusetts filed separate cost

recovery actions, soon consolidated, against appellants and other

alleged
including
Charles
Co.

The

U.S.C.
The

owner-operators
Charles

(collectively,

George, Jr.

and

and Dorothy George), and the

James

9604(a), 9604(b),

early

of

sons' firm, C & J Trucking

claims under 42

9604(e), 9607(a), 6928(a) & 6928(g).

alleged claims

9607(a) and Mass. Gen. Laws ch. 21E,

The

Georges"),

George (children

federal government's complaint alleged

Commonwealth's complaint

described

"the junior

procedural

under 42

U.S.C.

5.

history

of

the

struggle

is

in a previous opinion of this court, see United States

___ _____________

v. Charles George Trucking Co., 823 F.2d 685 (1st Cir. 1987), and
___________________________
____________________

1Charles George, his wife Dorothy George, Charles George

Trucking, Inc., and Charles George Land Reclamation Trust appear
as appellants. We are not required to differentiate among them.
2

need

not be

revisited.

Thereafter,

acting

on

plaintiffs'

motions for partial summary judgment, the district court adjudged

appellants

to be jointly and

severally liable for

the costs of

cleanup.

However, the court left open the question of the junior

Georges'

liability due to

factual disputes anent

the degree of

control that they exercised over the Site.

In June of 1989, plaintiffs amended their complaints to

add twenty-four
these

generator and transporter defendants.

defendants

against thirty-one
counterclaims

brought

other putative

against

regulation.

third-party claims

the

Appellants

generators.

plaintiffs,

emulated

for

In turn,

contribution

They

also filed

charging

negligent

this tactic,

serving similar

counterclaims.
The district
on

court intervened to impose some structure

this welter of claims and cross-claims.

order

(CMO)

third-party

dated April
defendants

12,

1990, Judge

to have

asserted

By a case management
Woodlock
all

deemed the

available cross-

claims and counterclaims against other parties, but precluded the

plaintiffs from asserting claims directly against the third-party

defendants.

The judge supplemented the CMO in a subsequent bench

ruling through
shipment

which he limited development

issues, that is, issues

of so-called trans-

involving wastes hauled to the

Site after first being dumped elsewhere.

By the fall of 1991, the dust had settled.

of summary judgment

motions had been

A new round

heard (most were

denied),

and trialworthy issues had been identified as to the liability of

3

all defendants, save only the appellants, and as to virtually all

aspects

of

the

remedial

phase.

Unresolved

questions

also

remained as to the counterclaims asserted against the plaintiffs.

The likelihood of lengthy litigation loomed large.
Before
earnest.

too

After a

Chief Judge Tauro

among

as a

yielded an

to extinguish

global

the

all

and

state

$3,103,712

as a

negotiations,

agreed

token of

again

held

the generators

of approximately

to share the aggregate cost of

contribute

Judge

exchange

decide among themselves

their responsibility.
under

and

$36,000,000.

the settlement.

to

meetings

plaintiffs, in

third-party defendants) in

how

in

appointed

Numerous

by the

claims against

and transporters were to

governments

began

district court

agreement

"cash-out" payment

The generators

negotiations

settlement master.2

transporters (including the

for a

settlement

fitful start,

the parties

essence,

long,

Tauro's

an

The federal

additional

After further
auspices,

the

plaintiffs

and

proposing to
payment

the

of

the

Georges

also

extinguish the latters'

$3,100,000.

bargaining sessions
from

junior

Though

The

an

accord,

liability in return

appellants

from time to time,

negotiations.

reached

for a

participated

in

they eventually withdrew

claims

against

them

remain

unresolved.
____________________

2Judge Tauro is the Chief Judge of the United States

District Court for the District of Massachusetts.
We applaud
Judges Tauro and Woodlock for their creative approach to the
resolution of this complex case.
We urge other jurists to
consider collaborative efforts of this sort when circumstances
warrant.
4

The
decrees.

settling parties

They

reached by

presented

second, embodying
junior Georges,

comment.

the first,

the plaintiffs with the

to the district court

Federal

prepared

two

proposed

embodying the

consent

settlement

generators and transporters,

on December 17, 1992.

They presented the

the plaintiffs' suggested

settlement with the

on July 27,

1993.

Register, see 28 C.F.R.

___

Both were
50.7, but

advertised in the

elicited no public

At
applied

the

a hearing

held

standards set

on May
forth

24,

1993, Judge

in United States
______________

Woodlock

v. Cannons
_______

Engineering Corp., 899 F.2d 79, 85 (1st Cir. 1990), and found the
_________________

generator/transporter decree to be reasonable, fair, and faithful

to CERCLA's

objectives.

November 12, 1993, the

the
Fed.

second decree.

Following a

separate hearing held

court made similar findings in

Judge

R. Civ. P. 54(b),

Woodlock entered both

on

regard to

decrees under

thus permitting appellants,

as the lone

objectors, to prosecute these appeals.

II.
II.

STANDARD OF REVIEW
STANDARD OF REVIEW
Despite

rusted.

It

appellants'

teaches

that

reasonable, faithful to the

animadversions,
CERCLA

consent

Cannons has
_______
decrees

must

not

be

statute's objectives, and fair (both

procedurally and substantively).

Cannons, 899 F.2d at 85.

_______

The

battle over whether a particular decree achieves these benchmarks

will usually be won or lost in the trial court.

By the time such

decrees arrive on the doorstep of the court

of appeals, they are

"encased in

Id.
___

a double layer

of swaddling."

at 84.

In the

first place, a trial court, without abdicating its responsibility

to

exercise

parties'

independent judgment,

agreement and the

must

defer

EPA's expertise.

heavily to
See id.
___ ___

the

In this

case, the inner layer of swaddling is especially thick because of

the role played by the distinguished special master in overseeing

negotiations.
compelling.
district

The

second

basis

for

deference

is

Because an appellate court ordinarily cannot rival a

court's mastery of a factually complex case

that is often, as in
involvement

equally

a mastery

this instance, acquired through painstaking

over many

years

the

district court's

views must

also be accorded considerable respect.

Largely in

consequence of these

swaddling, an appellate tribunal

decision
decree

to

approve or

only for

then, the decision

that, in

buying into either

court made

entry

of a

of discretion.
unless the

or both of

CERCLA consent
In

this case,

objectors can

the decrees,

show

the lower

a serious error of law or suffered a meaningful lapse

of judgment.
III.
III.

below stands

protective

may overturn a district court's

reject the

manifest abuse

layers of

See id.
___ ___

DISCUSSION
DISCUSSION

Appellants advance four sets of arguments in support of

their

claim

proposed

that the

settlement.

district
We proceed

court too

freely

to examine

accepted the

each of

components that comprise this asseverational array.

the four

A.
A.

Reasonableness.
Reasonableness.
______________

A CERCLA consent decree

is reasonable when it provides

for

an

efficacious cleanup,

compensates the
89-90.

and

same

time adequately

public for the cost of that cleanup.

Efficacy

settlement comes

is

not merely

function

to meeting a scientifically

is adequacy merely a function of

meeting

at the

an estimate

pragmatic concepts,

of

of

See id. at
___ ___
how

close a

defined ideal, nor

how close a settlement comes to

projected costs.

and evaluating

These are,

rather,

them requires common

sense,

practical wisdom, and a dispassionate assessment of the attendant

circumstances.
In this
proposed

cleanup,

case, appellants question the

and

claim

that

evidentiary hearing on the matter.

of

this objection,

appellants

they

are

efficacy of the
entitled

In support of the first

do little

more than

to

an

half

plagiarize

plaints from prior pleadings filed by other parties in opposition

to

plaintiffs' previous

motions for

partial summary

judgment;

they do

not attempt to explain

supporting documents in

these points, fail to

a record appendix, and rely

set forth

on rhetoric

to the exclusion of either record citations or scientific fact.

We reject
it

appellants' objection on two

is presented to us

in a slipshod

argumentation,

and is,

consideration.

See
___

cert.
_____

therefore, not

entitled

Ryan v. Royal Ins. Co.,

____
_______________

denied,
______

494

independent review of the

Woodlock acted

well

U.S.

1082

to substantive

916 F.2d 731,

895 F.2d 1, 17

(1990).

Second,

record leaves us confident

within

the

First,

fashion, without developed

(1st Cir. 1990); United States v. Zannino,

______________
_______
Cir.),

bases.

realm

of

his

734

(1st

our

that Judge

discretion

in

concluding that

the consent decrees incorporated

a suitable set

of remedies.
The
unavailing.
an

second

half

of

the

objection

is

similarly

The district court did not err in declining to hold

evidentiary

hearing

to

delve

into

matters

of

efficacy.

Requiring hearings to review the reasonableness of CERCLA consent

decrees

as

a matter

of

course would

frustrate

the statutory

objective
94.

of expeditious settlement.

See Cannons,
___ _______

899 F.2d at

Consequently, requests for evidentiary hearings are, for the

most part, routinely

denied

and properly

decree stage in environmental cases.

so

at

the consent

See, e.g., United States v.

___ ____ _____________

Metropolitan St. Louis Sewer Dist., 952 F.2d 1040, 1044 (8th Cir.
__________________________________
1992); State of Ariz.
______________
Ariz.

v. Motorola, Inc., 139 F.R.D. 141, 148 (D.

______________

1991); United States v.

_____________

Bliss, 133 F.R.D.

_____

559, 568 (E.D.

Mo. 1990); United States v. Rohm & Haas, 721 F. Supp. 666, 686-87
_____________
___________
(D.N.J. 1989) (collecting earlier cases).
necessary

or

desirable

United States v.
______________

in

While a hearing may be

special circumstances,

Town of Moreau,
________________

751

F.

Supp.

see,
___

e.g.,
____

1044,

1051

(N.D.N.Y. 1990), such cases are relatively rare.

This case

invokes the general rule,

not the long-odds

exception to it.

The court had ample information before it, and,

even

evidentiary hearing,

without an

the parties

had

"a fair

opportunity to present relevant facts and arguments to the court,

and to counter the

opponent's submissions."

Corp., 862 F.2d 890, 894 (1st Cir. 1988).

_____
have

Aoude v.
_____

Mobil Oil
_________

Moreover, appellants

pointed to nothing out of the ordinary that would suggest a

8

particularized

need for

an

evidentiary hearing.

Under

these

circumstances, we turn a deaf ear to appellants' lament.3

B.
B.

Fidelity to the Statute.

Fidelity to the Statute.
_______________________

Among the overarching goals of CERCLA recognized by the

courts

are

"accountability, the

environment, and
899

F.2d

at

promptness of

91.

desirability

of an

unsullied

response activities."

Cannons,
_______

Appellants

insist

endorsement of the consent decrees

accountability

that

Judge

Woodlock's

undermined one of these goals

in two separate ways.

Appellants' main argument is that the allocation method

embodied

in the

first

consent decree

individual generator's and

failed

transporter's degree of

As a factual matter, appellants are correct;

did no

more than assign

potentially responsible
allocation

government
position

agency,
to

put

in
so

the consent decrees

parties (PRPs), leaving the

to prohibit
the
fine

classes of

question of

class members themselves.

such an approach.
midst
a

point

of

But we

Realistically,

negotiations,
on

each

culpability.

payment responsibilities to

inter sese to the

_____ ____

see no reason

to specify

is

in no

accountability.

We,

therefore,

endorse, in

general, EPA's

practice

of negotiating

with a representative group of PRPs and then permitting the group

members to divide the burden of the settlement among themselves.
This

is,

as

one court

has

said,

"practical and

____________________

3Appellants
also
disparage
the
adequacy
of
the
generator/transporter settlement from a financial standpoint. As
we explain in Part III(B), infra, their criticism is unfounded.
_____
9

reasonable process for achieving

Acton Corp., 733 F.
____________

Supp. 869, 873

faithful to CERCLA's goals.

accountability
overall

settlements."

in an

United States v.
_____________

(D.N.J. 1990).

It is also

After all, the ultimate

environmental case

is the

measure of

extent

of the

recovery, not the amount of money paid by any individual

defendant.
Over

and

beyond

especially

compelling

allocation

here.

appellants' records

these

reason
Judge

generalities,

for

Woodlock

accepting

supportably

were wholly inadequate.

there

is

an

class-wide
found

that

lack of reliable

records renders it impossible, as a practical matter, for a court

to make

reasoned findings concerning

of particular
So

generators or transporters to

it is here.

can

And, moreover, because

be directly

Site,
parties

the relative contributions

attributed

they can scarcely be

resorted to, and

the shortage of records

to appellants'
heard to complain

the court then

the aggregate harm.

stewardship of

the

that the settling

approved, a class-wide

allocation.
Appellants'
refrain

evocative

reasonableness,

of

fallback position
one

of their

attacks

see supra note 3, they

___ _____

consent decree compromised the

is

predictable:
on

the

in a

decrees'

insinuate that the first

goal of accountability by setting

too modest

a price tag on

Appellants

have an easily envisioned stake in this aspect of the

matter:

as

the

potentially liable for

sole

the generator/transporter settlement.

non-settling

defendants,

they

the full difference between the

are

costs of

10

cleanup

and the total amount paid by

U.S.C.

9613(f)(2), 9622(h)(4);

the settling PRPs.

see also
___ ____

See 42
___

United Technologies
___________________

Corp. v.
_____

Browning-Ferris Indus., Inc.,

____________________________

___ F.3d

___, ___

(1st

Cir. 1994) [No. 93-2253, slip op. at 17-18] (explaining interface

between

settlement and

CERCLA cases).

of PRPs

for contribution

If, say,

the overall clean-up

the

highest of the differing

total $70,000,000
have

liability

been bandied about

in

costs eventually

estimates that

appellants are staring down the barrel

of a $21,000,000 shortfall.

Appellants claim their aggregate net

worth amounts to only a tiny fraction of this exposure.

On this

basis, they contend that the plaintiffs sold out too cheaply, for
many of the settling parties have very deep pockets.

Although we understand appellants' consternation, these

considerations are virtually irrelevant.
district court
costs
of

In the first place, the

found that appellants are liable for all clean-up

and that finding is not disputed

any assessment

of compensatory

on appeal.

damages, the

As is true

liable party's

ability to pay should not influence the amount of the assessment.

See
___

generally
_________

evidence

of

inadmissible

22 Am.
a

defendant's

in

recoverable);

Jur. 2d

cases

Damages
_______

pecuniary

where

only

Vasbinder v. Ambach, 926

_________
______

952

(explaining that

resources
compensatory

is

generally

damages

are

F.2d 1333, 1344 (2d Cir.

1991) (applying principle).

To be sure, at
some

practical

severally

bearing.

the next step relative wealth

When

defendants

are

may have

jointly

and

liable, the prevailing party may choose to collect the

11

entire

indebtedness from one or

the exclusion of others.

903,

914 (D. Md.

more of the

liable parties, to

See, e.g., McDonald v. Centra, 118 B.R.

___ ____ ________
______

1990), aff'd, 946

_____

F.2d 1059

(4th Cir. 1991),

cert. denied, 112 S. Ct. 2325 (1992).

_____ ______

But when, as in this case,

liability

than

is

contested,

much

more

the

PRPs'

relative

affluence must be considered.

With this in mind, the proper way to gauge the adequacy

of settlement amounts
the

proportion

settlors with

of

to be paid by settling PRPs

total projected

costs

the proportion of liability

to

is to compare

be

paid by

the

attributable to them,

and then to factor into the equation any reasonable discounts for
litigation

risks,

time

savings,

and

the

like

that

may

be

justified.
Inspected through that lens,
looks entirely appropriate.
that

generators

The district judge explicitly found

were

responsible for fifty percent of the environmental damage.

Under

terms

tendered

of
by

the
the

and

decree

collectively

the

the

the first consent

transporters

negotiated settlement,
generators

and

the

transporters

payment
as

to
a

be

group

(approximately
highest

$36,000,000)

estimate

of

represents more

aggregate

clean-up

than

costs

half of

the

($70,000,000).

Thus, the settlement is favorable to the government agencies even

before

allowances are

litigation

risks,

made for

the

appropriate discounts,

benefit

derived

from

such as

shelving

the

12

counterclaims, and

the desirability of expediting

the cleanup.4

Accordingly, appellants' accountability challenge lacks force.

C.
C.
In
vehemently
finding

somewhat

related

that Judge Woodlock

on

substantive

settlements' allocation
the

Fairness.
Fairness.
________

various

classes

vein,

appellants

evaded his obligation

fairness

by

failing

to

protest

to make a

explain

the

of responsibility either within or among

of

defendants.

In

support,

isolate a passage in Cannons in which we wrote:

_______
Substantive fairness
introduces into the
equation concepts of corrective justice and
accountability: a party should bear the cost

appellants

of the
harm for
which it
is legally
responsible. The logic behind these concepts
dictates that settlement terms must be based
upon, and roughly correlated
with, some
acceptable measure
of comparative fault,
apportioning liability among the settling
parties according to rational (if necessarily
imprecise) estimates of how much harm each
PRP has done. . . .
Whatever 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, welding some
reasonable linkage between the factors it
includes in its formula or scheme and the
proportionate shares of the settling PRPs.
____________________

4For what it may be worth, the settlement compares quite

favorably to the universe of CERCLA settlements, inasmuch as such
settlements often compensate the public for only a tiny fraction
of the overall expense. See, e.g., In re Acushnet River, 712 F.
___ ____ ____________________
Supp. 1019, 1031-32 (D. Mass. 1989) (approving settlement by
primary owner/operator for $2,000,000 in contrast to projected
total clean-up cost of $34,000,000); City of New York v. Exxon
_________________
_____
Corp., 697 F. Supp. 677, 693-94 (S.D.N.Y. 1988) (approving
_____
settlement by
seven of fifteen defendants
for less than
$14,000,000 in contrast to projected total clean-up cost of
$400,000,000).
13

Cannons, 899 F.2d at 87 (citations omitted).

_______

Appellants' error is to read Cannons without regard for

_______
its

facts.

standards

Cases
they

resolve

particular

articulate often

are

controversies, and
framed in

the

certain way

primarily to

rebut an argument raised

Cannons, the
_______

quoted passage rebuffed a challenge to a particular

method of allocation.
that

context.

In

appellants, Cannons
_______

It
a

by a litigant.

cannot be ripped root and

passage

conveniently

makes this very point;

Thus, in

branch from

overlooked

by

the court recognized

that the standards it limned were not to be applied woodenly:

[W]e are quick to concede that [fairness,
reasonableness, and fidelity to the statute]
are all mutable figures taking on different
forms
and
shapes in
different factual
settings.
Yet, the
concepts' amorphous
quality is no accident or quirk of fate. We
believe that Congress intended, first, that
the judiciary take a broad view of proposed
settlements, leaving highly technical issues
and relatively petty
inequities to
the
discourse between parties; and second, that
the district courts treat each case on its
own merits, recognizing the wide range of
potential problems and possible solutions.
Id. at 85-86.
___
In the circumstances of
scant resemblance to Cannons
_______
fairness

required a

allocation or

this case

a case

that bears

we do not believe that substantive

more detailed

the allocation method.

explanation of

either the

Three considerations pave

the way to this conclusion.

First:
First:
_____

There is little need

for a court to police the

substantive fairness of a settlement as among settling parties of

a particular

class.

Sophisticated actors

know how to

protect

14

their own interests, and they are well equipped to evaluate risks
and rewards.
inquiry

to

trial court can, therefore, usually

the

substantive

contribution, or, put

fairness of

aggregate

performed this

and non-settling PRPs.

task in exemplary

purpose to go further and

lens

fairness

inquiry

on

the

of

each

Here,

fashion.

would have served no useful

of

class

another way, to the proposed allocation of

responsibility as between settling

the trial court

the

confine its

It

focus the

class

member's

contribution.
Second:
Second:
______

It is impossible to explain

an allocation of

liability in minute detail when, as now, the historical record is

incomplete.
standards

And,

though

of excellence,

impossible.
recognizing an

Thus,

it

we
we

is

hold
do

not

not

district
expect

surprising

obligation to make findings

courts
them
that

to
most

to

high

do

the

courts

on comparative fault

in the CERCLA context have framed the obligation in such a way as

to afford an exception for cases in which reliable information is

unavailable.
weighing

[1990

at 88 (explaining need for

substantive fairness,

information
States
______

See id.
___ ___

particularly when

is "ambiguous, incomplete,

v. Bell Petroleum Serv.,

____________________
U.S.

Dist.

LEXIS

flexibility in

or inscrutable"); United
______

21 Envtl. L.

14066

at

the available

Rep. 20,374, ____

*8-*10]

(W.D.

Tex.

1990)

(rejecting the argument that, in order to deem a settlement fair,

a

court must find that

fair share of

a party's settlement

liability, even

liability among

corresponds to its

when "no method

the [d]efendants" exists that

of dividing

the

would not involve

15

"pure

speculation"); Rohm & Haas,

___________

that whether
plausible

a settlement

range

determination

that

of

bears a

estimates
must be

721 F. Supp.

at 689 (stating

reasonable relation
of

"based

comparative
on the

fault

record");

United States v. Conservation Chem. Co., 628 F.

______________
_______________________

to some
is

see also
___ ____

Supp. 391, 402

(W.D. Mo. 1985) (declaring that a court should spurn a settlement

which "arbitrarily

or unreasonably ignores the comparative fault

of

the parties, where there is a reasonable basis for allowing

________________________________________________

that comparison to be made") (emphasis supplied).

__________________________
Such
muddled

an

exception

record is

Cannons, 899
_______

the

Dilemma, 27
_______
actions,

vitally

norm in

F.2d at 88

Boomgaarden & Charles

is

most

important

because

CERCLA litigation.

(citing authority);

see also
___ ____

See
___

Lynnette

Breer, Surveying the Superfund Settlement

___________________________________

Land & Water L. Rev. 83, 121 (1992) ("In most CERCLA

the

contribution

government
amounts.

desire to escape

has

Poor

difficulty
records,

accurately

faulty

liability all add to this

proving

memories, and

difficulty."); Barry

S. Neuman, No Way Out?

The Plight of the Superfund Nonsettlor,
_____________________________________________________
20 Envtl. L. Rep.
CERCLA

cases,

10,295, 10,299 (July 1990) ("In

the

owner/operators are

recollections

of

waste

virtually all

haulers

and

site

likely to be questionable, the documentation

linking some generators to a specific site subject to attack, and

the evidence generally incomplete.").
We

conclude that so long

class-wide approximation
correlated with

as the basis

is at hand

some acceptable measure

16

for a sensible

an approximation "roughly
_______
of comparative

fault,"

Cannons,
_______

899 F.2d

achieving

at 87 (emphasis

precise measurements

preclude a trial court from

understanding,

we

responsibility

uphold

between

offend

difficulties in

comparative

fault will

entering a consent decree.

the

district

owner/operators,

generators/transporters,
splitting the

of

supplied)

on the

other

responsibility between

our sense

of

fairness.5

On

this

court's

division

of

on

hand,

and

one

hand.

On this

those two groups

Cf.,
___

not

e.g., 2
____

record,

does not

Kings

3:16-18

(describing original Solomonic solution).

Third:
Third:
_____
. . , taking
settings,"
concept.

As we wrote in Cannons, fairness is "mutable .

_______

on different forms and shapes in

id. at 85.
___

To that

When substantive

different factual

extent, fairness is

an elusive

fairness cannot be measured directly,

a court must devise alternate methods of testing for it.

Here, Judge Woodlock noted
of

substantive

essential

fairness but

because

consequence from
concession from

substantive

the lack of direct evidence

ruled that
fairness

procedural fairness.

such evidence

was not

flowed

natural

as

Then, after

appellants' counsel that ample

allocate responsibility between different classes

eliciting a

basis existed to

of defendants,

the court

proceeded to make

a substantive

limited reach, determining that

collectively,

were

fairness finding

of

the generators and transporters,

responsible

for

one-half

of

the

overall

____________________

5Appellants concentrate their fire on the first consent

decree, and do not attack the substantive fairness of the
allocation approved vis-a-vis the junior Georges. At any rate,
that allocation, too, seems supportable.
17

damage.
We discern no error.

Although appellants take umbrage

at the idea that one type of fairness serves to assure the other,
providing

such

an

procedural fairness.

assurance

look

of

procedure.").

precisely

Cf., e.g., Sir

___ ____

on Early Law and Custom 389

________________________
the

is

the

function

Henry Maine, Dissertations

_____________

(1886) ("Substantive law has

being gradually

secreted

There exist many

of

in

cases in

. . .

the interstices
which the data

of

is so

fragmentary that a district court cannot be held to the letter of

the Cannons
_______

substantive fairness

standard.

In

such cases,

finding of procedural fairness together with other circumstantial

indicia of

fairness, may constitute

an acceptable

proxy.

See
___

Neuman, supra, at 10,299 (postulating that incomplete records are

_____
so common in

CERCLA litigation

review the court undertakes,

that, no matter

how thorough

the search for substantive fairness

typically collapses into a search for procedural fairness).

This

is such a case.

By all accounts, the conduct of

the settlement negotiations, under the supervision of Chief Judge

Tauro,

was a textbook model

press

any

reinforced

objections
in our

to

so

much so that appellants do not

procedural fairness.

conclusion

that the

We

are

lower court's

thus

fairness

findings were both permissible and supportable.

D.
D.

The Scope of the Consent Decrees.

The Scope of the Consent Decrees.
________________________________

Appellants' final

set of

outside

the range of Cannons.

_______

decrees

are overbroad

arguments forces us

to step

Appellants claim that the consent

both because

they addressed

claims that

18

were

not pleaded and because they addressed claims that had been

sidetracked by the CMO.

1.
1.
concerning

The Standard.
The Standard.
_____________
the

scope

of

In

its

definitive

consent decrees,

the

statement

Supreme

Court

explained that a court cannot lend its imprimatur to a settlement

unless:
(1)
it "spring[s] from and serve[s] to
resolve a dispute within the court's subject
matter jurisdiction"; (2) it `come[s] within
the general scope of the case made by the
pleadings'; and (3) furthers the objectives
upon which the complaint was based.

Local No. 93, Int'l Ass'n of Firefighters v. Cleveland, 478 U.S.

__________________________________________
_________
501, 525-26 (1986); (citations
Found. v.
______
this

omitted); accord Conservation Law

______ ________________

Franklin, 989 F.2d 54,

________

standard to

the consent

59 (1st Cir. 1993).

decrees at

issue as

We apply
a means

of

testing appellants' twin objections.

2.
2.

Natural Resource Damages.

Natural Resource Damages.
__________________________

Appellants' complain

that the decrees resolved potential claims for damages to natural

resources

that were

never

pleaded and,

properly

before the court.

Even if

argument

that these claims would

accordingly, were

not

we assume for

the sake of

not have surfaced

at a trial,

appellants' objection is fruitless.

The objection

calls into

the Firefighters requirements

____________
in

this instance.

discussed in

Indeed, the

the decrees

question only the

second of

and that requirement is satisfied

natural resource

exemplify the

type of

damage claims

related claims

envisioned by the Justices

approving

court.

as coming within the authority

of an

They are claims that, though not expressly set

19

out in the pleadings, fall within their general scope.6

3.
3.

Claims Precluded Under the Case Management Order.

Claims Precluded Under the Case Management Order.
_________________________________________________

Appellants' next
claims

issues.

the consent decrees

disposed of

that could not have been litigated under the terms of the

CMO, namely,
party

complain that

potential claims

defendants

and

Insofar as

potential
we

impression whether a

by the plaintiffs
claims

can tell,

it is

anent
a

against third-

trans-shipment

question of

consent decree may resolve claims

first

that the

parties were precluded from litigating under the court's own case
management orders.

On reflection, we believe that question

must

be answered affirmatively.
CMOs
objectives.
litigation,

are

designed to

These include not

see Fed. R. Civ.
___

current version of the

see Fed. R.
___

serve

variety of

pragmatic

only expediting and focusing the

P. 16(a)(1)-(4), but

also, as the

rule recognizes, facilitating settlement,

Civ. P. 16(a)(5).7

We think

it follows that

case

management

is

an

area

"considerable discretion."

in

which

the

district

court

has

Geremia v. First Nat'l Bank, 653 F.2d

_______
________________

____________________

6Appellants' contention to the contrary

relies almost
exclusively on the opinion in City of New York v. Exxon Corp.,
_________________
___________
697
F. Supp. 677 (S.D.N.Y. 1988).
But Exxon is easily
_____
distinguished.
There, the district court refused to approve a
settlement involving a non-party. See id. at 687. The court
___ ___
reasoned that it had no power to resolve a dispute outside its
subject matter jurisdiction.
Id. at 687-88.
The case at bar
___
poses
very
different problems,
bereft
of jurisdictional
overtones.

7We note that, in practice, these two sets of goals often go

hand in hand. To hold settling parties to the strictures of a
CMO, come what may, would place the two goals in tension with one
another.
20

1, 5 (1st Cir.

1981).

Although

a CMO will ordinarily

the

subsequent course of the action," Fed.

may

be modified

by

subsequent order

at

"control

R. Civ. P. 16(e), it
the district

court's

pleasure, see Ramirez Pomales v. Becton Dickinson & Co., 839 F.2d
___ _______________
______________________
1, 3 (1st

Cir. 1988), or, in the case of a final CMO, to prevent

manifest

injustice,

see
___

Fed.

R.

Civ.

P.

16(e).

More

specifically, the trial court has very broad discretion to modify

a preexisting case management order to facilitate settlements, at

least

in

the absence

of unfair

Charles

A. Wright

1525.1,

at 253-54 (1990)

to

encourage

et

al.,

prejudice.

See
___

generally 6A
_________

Federal Practice and Procedure

________________________________

(discussing district court's authority

settlements).

We

see

no

unfair prejudice

to

appellants from the court's wise exercise of its discretion here.

Once
naturally.

we

have reached

this

plateau,

the rest

flows

It is evident from the very nature of case management

orders that they

are not

jurisdictional in effect.

first Firefighters requirement

____________
below, the

second and

is fulfilled.

Thus,

And as

the

we explain

third Firefighters requirements

____________

also are

met.
That the
within

the

general

objectives
CERCLA

of the

cost

resolving

third-party

all

scope

plaintiffs'

recovery

actions

the

pleadings

complaints
are

issues revolving

site, and frequently, in

form

of

and trans-shipment

and advance

cannot be

initiated

around

claims

in the

This is
21

the

gainsaid.
hope

of

particular Superfund

the hope that resolution will

of a global settlement.

come

take the

consistent both with the

statutory design

and

the common

good.

In

the

words of

the

district court:
It would have been a foolish or odd consent
decree that did not incorporate within it all
of the potential claims that can and could
have arisen out of th[is] litigation. . . .
[I]t is altogether proper, indeed, in the
larger public interest for [the court] to
leave no loose threads.
Moreover, the
is

Supreme Court has made

clear that there

no per se prohibition against consent decrees that exceed the

___ __

possible bounds of a decision issued directly by the trial court.

Because a consent
legal claims

decree is

but also by

animated not only

the parties' consent, a

necessarily barred from entering

the

decree provides

parties'

court is "not

a consent decree merely because

broader relief

awarded after trial."

by the

than the

court could

Firefighters, 478 U.S. at 525.

____________

have

Viewed in

this light, we do not think that the scope of the consent decrees
exceeded the bounds of the trial court's discretion.
To
(and,

recapitulate,

in many cases, should)

then,

a CERCLA

consent

sweep more broadly

decree may

than would the

court's judgment in the event that the litigation culminated in a

full-dress
decrees

trial.

pass

Because this is true, and because the consent

Firefighters muster
____________

in

all

respects, we

reject

appellants' contention that the decrees are overbroad.

IV.
IV.

CONCLUSION
CONCLUSION
We

need

go

no further.

Finding,

appellants' asseverational array contains

hold

that the

district court

consent decrees at issue here.

Affirmed.
Affirmed.
________

we do,

that

more cry than wool, we

acted lawfully
22

as

in

approving the

23