Emhart Industries, Inc. v. New England Container Company, Inc et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
EMHART INDUSTRIES, INC., 	)
)
Plaintiff and Counterclaim 	)
Defendant, 	)
)
v. 	) 	C.A. No. 06-218 WES
)
NEW ENGLAND CONTAINER COMPANY, 	)
INC.; et al., 	)
)
Defendants and Counterclaim )
Plaintiffs. 	)
___________________________________)
)
EMHART INDUSTRIES, INC., 	)
)
Plaintiff and Counterclaim 	)
Defendant, 	)
)
v. 	) 	C.A. No. 11-023 WES
)
UNITED STATES DEPARTMENT OF THE 	)
AIR FORCE; et al., 	)
)
Defendants, Counterclaim 	)
Plaintiffs, and Third-Party )
Plaintiffs, 	)
)
v. 	)
)
BLACK & DECKER, INC.; et al., 	)
)
Third-Party Defendants. 	)
___________________________________)
ORDER
On July 9, 2018, the United States of America filed a Notice
of 	Lodging 	of 	Proposed 	Consent 	Decree 	between 	Emhart 	Industries,
Inc. 	and 	Black 	& 	Decker 	Inc. 	(collectively 	“Emhart”), 	and 	the
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United 	States 	and 	the 	State 	of 	Rhode 	Island 	(collectively
“Governments”, and together with Emhart, “the Settling Parties”),
ECF No. 671. 	The United States published a notice of the Consent
Decree 	in 	the 	Federal 	Register 	on 	July 	13, 	2018, 	which 	began 	the
30-day 	comment 	period. 	See 	83 	Fed. 	Reg. 	32687-02. 	On 	September
25, 	2018, 	the 	Governments 	filed 	a 	Motion 	for 	Entry 	of 	Consent
Decree (“Motion”). 	ECF No. 686.
The 	Consent 	Decree 	provides 	that 	Emhart 	will 	perform 	the
cleanup of the Centredale Manor Restoration Project Superfund Site
(the “Site”) and pay all of the Governments’ unrecovered past and
future costs. 	Consent Decree ¶ V.6.a, ECF No. 671-1; see also id.
¶ 26 (stating that the cleanup is estimated to cost $96.9 million).
The Consent Decree resolves all of the United States’ and the State
of 	Rhode 	Island’s 	claims 	against 	Emhart 	under 	the 	Comprehensive
Environmental 	Response, 	Compensation, 	and 	Liability 	Act, 	as
amended, 42 U.S.C. §§ 9601-75 (“CERCLA”), and Rhode Island General
Laws 	§§ 	23-18.9-1 	et 	seq., 	23-19.1-1 	et 	seq., 	and 	23-19.14-1 	et
seq., respectively. 	Id. ¶¶ 71, 83-85. 	The Consent Decree further
resolves 	Emhart’s 	claims 	against 	the 	United 	States 	regarding 	the
Site. 	Id. ¶ 78.
In 	response 	to 	the 	Governments’ 	Motion 	for 	Entry 	of 	Consent
Decree, 	Emhart 	filed 	a 	Notice 	of 	Non-Opposition, 	noting 	that 	it
does not oppose the Motion but it also does not “acquiesce to any
of the statements in the motion or its supporting memorandum about
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historical 	operations 	at 	the” 	Site. 	Emhart’s 	Notice 	of 	Non-
Opposition 	2, 	ECF 	No. 	691. 	A 	group 	of 	Third-Party 	Defendants1
filed a response requesting that the Court allow briefing and issue
an 	order 	regarding 	the 	availability 	of 	a 	Section 	107 	cause 	of
action 	(or 	any 	other 	avenue 	for 	establishing 	joint 	and 	several
liability with Third-Party Defendants) to the Settling Defendants
before 	the 	Court 	acted 	on 	the 	Motion 	for 	Entry 	of 	the 	Consent
Decree. 	See Eli Lilly and Co.’s Resp. to Mot. for Entry of Consent
Decree 	12-13, 	ECF 	No. 	690. 	A 	second 	group 	of 	Third-Party
Defendants 	and/or 	Cross-Defendants2 	filed 	a 	Motion 	in 	Opposition
to 	the 	Motion 	for 	Entry 	of 	Consent 	Decree 	addressing 	several
additional issues. 	See Mem. in Opp’n to Mot. of the United States
1 Eli 	Lilly 	and 	Company, 	BNC 	LLC 	(successor 	to 	BNS 	Company),
The 	Original 	Bradford 	Soap 	Works, 	Inc., 	Cranston 	Print 	Works
Company, 	Hexagon 	Metrology, 	Inc., 	Eastern 	Color 	& 	Chemical 	Co.,
Teknor 	Apex 	Company, 	CNA 	Holdings 	LLC, 	Olin 	Corporation, 	Phibro
Animal Health Corporation, Henkel Corporation, Indusol Inc., IVAX
LLC, BASF Corporation, Union Oil Company of California, Exxon Mobil
Corporation, and Organic Dyestuffs Corporation. 	See Eli Lilly and
Co.’s 	Resp. 	to 	Mot. 	for 	Entry 	of 	Consent 	Decree 	3 	n.1, 	ECF 	No.
690.
2 	CNA 	Holdings 	LLC, 	BASF 	Corporation, 	BNS 	LLC 	(formerly 	BNS
Company), 	Cranston 	Print 	Works 	Company, 	Exxon 	Mobil 	Corporation,
Organic 	Dyestuffs 	Corporation, 	Teknor 	Apex 	Company, 	The 	Original
Bradford 	Soap 	Works, 	Inc., 	and 	Union 	Oil 	Company 	of 	California.
See 	Mem. 	in 	Opp’n 	to 	Mot. 	of 	the 	United 	States 	and 	Rhode 	Island
for 	Entry 	of 	Consent 	Decree 	2 	& 	n.1, 	ECF 	No. 	693. 	Phibro 	Animal
Health 	Corporation, 	Eastern 	Color 	and 	Chemical 	Company, 	Henkel
Corp., 	Indusol, 	Inc., 	IVAX 	LLC, 	and 	Olin 	Corporation 	joined 	this
opposition in part. 	See Notice of Partial Joinder in Mem. in Opp’n
to Mot. of the United States and Rhode Island for Entry of Consent
Decree filed by CNA Holdings LLC, ECF No. 694.
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and 	Rhode 	Island 	for 	Entry 	of 	Consent 	Decree, 	ECF 	No. 	693. 	The
Governments and Emhart filed replies. 	See United States’ and Rhode
Island’s 	Reply 	to 	Resp. 	in 	Opp’n 	to 	Mot. 	for 	Entry 	of 	Consent
Decree, ECF No. 696; Emhart’s Resp. to Opp’n to Mot. of the United
States and Rhode Island for Entry of Consent Decree, ECF No. 697.
After 	a 	thorough 	review 	of 	the 	2012 	Record 	of 	Decision 	(the
“ROD”) (ECF No. 671-2), Consent Decree (ECF No. 671-1), Statement
of 	Work 	(ECF 	No. 	671-3), 	the 	United 	States’ 	Motion 	for
Reconsideration 	(ECF 	No. 	555), 	all 	parties’ 	briefing 	related 	to
the Consent Decree, and the representations made at the March 19,
2019 hearing on this Motion, the Court concludes 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 with CERCLA and the National
Contingency Plan.3 	Moreover, the Court concludes that none of the
arguments presented by Third-Party Defendants in their Oppositions
poses an obstacle to approving the Consent to Decree at this time.
Accordingly, the Court vacates its Phase II Findings of Fact
and Conclusions of Law (ECF No. 548), approves the Consent Decree
as fair, reasonable, and consistent with the goals of CERCLA, and
enters 	the 	Consent 	Decree 	as 	Final 	Judgment. 	The 	Court 	has
3 	For 	example, 	the 	Court 	expects 	the 	parties 	will 	consider
and implement the reclassification of groundwater in line with the
state groundwater classification system. 	See Statement of Work ¶
3.7(a)(1), ECF No. 671-3.
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concluded 	that 	this 	Consent 	Decree 	has 	been 	negotiated 	in 	good
faith and implementation of this Consent Decree will “expedite the
cleanup 	of 	the 	Site 	and 	will 	avoid 	further 	prolonged 	and
complicated litigation between the” Settling Parties, and that it
“is 	fair, 	reasonable, 	and 	in 	the 	public 	interest.” 	See 	Consent
Decree 	¶ 	I.O. 	A 	Memorandum 	of 	Decision 	further 	explaining 	the
Court’s reasoning will be forthcoming.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: April 8, 2019
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