have not been successful in settling the claims Solvent brought against them, and they contend that they were never given a fair opportunity to settle either with the State or with Solvent. Laidlaw, AlliedSignal, and GMC each complain that while other third-party defendants who settled received contribution protection from the State, they have been forced to negotiate directly with Solvent for contribution protection. These parties submit that Solvent has required rapid settlements at "extortionate" rates in order to confer contribution protection on them.
These parties are also concerned that they may be subject to liability to Solvent for an amount that exceeds their proportionate share of liability. AlliedSignal argues that this inequitable result would occur if Solvent pays more than its equitable share of response costs, and is subsequently permitted to recover the excess amounts, effectively paid on behalf of settling third parties, from the non-settling third parties (Item 4, p. 16; Item 608, p. 3). GMC, on the other hand, argues that the inequitable result would occur if Solvent pays too little, and the cost of remediation leaves the non-settlors with a balance due that exceeds their share of liability (Item 589).
In support of its argument that the settlement is unfair, AlliedSignal calls attention to the agreement reached with Dover Chemical Corp. ("Dover"), a subsidiary of ICC. Dover was afforded an opportunity to negotiate a settlement directly with the State. As a result of these negotiations, Dover is to be dismissed from the suit, and is to receive contribution protection without contributing anything to the settlement. Further, AlliedSignal argues that the contamination at the site is mainly due to Solvent's operations and is therefore not the fault of Solvent's suppliers. AlliedSignal also contends that after it was joined as a third-party defendant in December 1995, the State made only a limited attempt to obtain contribution from it, and Solvent failed to make any demand until after January 31, 1997. Because of the stay of discovery, AlliedSignal had no opportunity to conduct independent discovery until January 31, 1997, when the stay was lifted.
The objectors urge the court to adopt a proportionate liability approach to third-party contribution claims brought by Solvent. They submit that if the court decides to apply the Uniform Comparative Fault Act (UCFA), 12 Uniform Laws Annotated, pp. 123-153 (1996 ed.), in conjunction with CERCLA section 113(f)(1) to this case, then they will no longer object to the consent decrees on the aforementioned grounds. They contend that if the court decides to apply the Uniform Contribution Among Tortfeasors Act ("UCATA"), 12 Uniform Laws Annotated, pp. 185-290 (1196 ed.), which would theoretically enable Solvent to recover from them any excess response costs Solvent paid that equitably ought to have been paid by other settling parties, then they will continue to object to the consent decrees on fairness grounds.
Solvent contends that the court does not need to address the issue of whether the UCFA or the UCATA should apply at this time, and urges the court to wait until the appropriate time in the anticipated third-party action(s) to make such a determination (Item 623, pp. 9-12).
I. The Standard of Review of Consent Decrees
A proposed consent decree must be fair, reasonable, and consistent with the purposes of CERCLA before it will be approved by the court pursuant to Sections 113(f) and 122(c), (I), 42 U.S.C. §§ 9613(f) and 9622 (c), (I). This court recognizes that its function in reviewing consent decrees apportioning CERCLA liability "is not to substitute its judgment for that of the parties to the decree but to assure itself that the terms of the decree are fair and adequate and are not unlawful, unreasonable, or against public policy." United States v. Hooker Chemicals & Plastics Corp., 540 F. Supp. 1067, 1072 (W.D.N.Y. 1982), aff'd., 749 F.2d 968 (2d Cir. 1984). The limited standard of review reflects a clear policy in favor of settlements. Id. In addition, "an evaluation of the Proposed Decree which overemphasizes the importance of its potential effect on the non-settlors . . . would frustrate the statute's goal of promoting expeditious resolution of harmful environmental conditions." In re Acushnet River & New Bedford Harbor, 712 F. Supp. 1019, 1029 (D. Mass. 1989).
Far more important than the exact share to be paid by each responsible party is the fact that the settlement is clearly in the public interest. None of the parties to the action has argued to the contrary. A comprehensive clean-up plan is in place, and the parties have represented to the court that remediation can begin within a very short time of the entry of the consent decrees. The court will seriously consider this important public interest in evaluating the fairness of the proposed consent decrees.
As noted above, Solvent contends that the court does not need to address the issue of whether the UCFA or the UCATA should apply at this time (Item 623, pp. 9-12). Because this court is not convinced that the consent decrees, and the process by which they were reached, are completely fair to the non-settling third-party defendants, the court believes that this is the appropriate time to determine which contribution model shall be applied hereinafter.
II. Equitable Share Versus Amount Paid - The UCFA Versus the UCATA
A. The Framework
CERCLA §§ 113(f)(1) and (f)(2) govern claims for contribution among responsible parties. Section (f)(1) provides:
Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) . . ., during or following any civil action under section 9606 . . . or under section 9607(a) . . . . Such claims shall be brought in accordance with this section and the Federal Rules of Civil Procedure, and shall be governed by Federal law. In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under section 9606 of this title or section 9607 of this title.
42 U.S.C. § 9613(f)(1). Section (f)(2) provides:
A person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement. Such settlement does not discharge any of the other potentially liable persons unless its terms so provide, but it reduces the potential liability of the others by the amount of the settlement.