United States District Court, S.D. Ohio, Eastern Division
Elizabeth P. Deavers, Magistrate Judge
OPINION AND ORDER
A. SARGUS, JR., CHIETONITED STATES DISTRICT CHIEF JUDGE
matter is before the Court on the Joint Motion for Approval
of Settlement Agreements Executed by Plaintiff Garrison
Southfield Park LLC ("Garrison"), Plaintiff Olymbec
USA LLC ("Olymbec," along with Garrison referred to
as "Plaintiffs"), and Defendants e-Lot Electronics
Recycling, LLC, eRevival LLC, and eWorks Electronics
Services, Inc. ("Settlors"). (17-cv-783, ECF No.
337; 19-cv-1041, ECF No. 259). Also before the Court is
Defendant Waste Commission of Scott County, Iowa's
("Defendant Scott County") Motion for Joinder in
the Kuusakoski Defendants' Request for Clarification of
the Process for Approval of Future Settlements. (17-cv-783,
ECF No. 344; 19-cv-1041, ECF No. 263). In addition, the Court
will rule on all Motions for Joinder in Support of the
Kuusakoski Defendants' Memorandum in Opposition to
Settlors' Joint Motion. (17-cv-783, ECF Nos. 355, 356,
359, 360, 368; 19-cv-1041, ECF Nos. 274, 275, 277, 278, 298).
reasons that follow, the Joint Motion is
GRANTED (17-cv-783, ECF No. 337;
19-cv-1041s ECF No. 259); Defendant Scott
County's Motion for Joinder is DISMISSED as
moot (17-cv-783, ECF No. 344; 19-cv-1041, ECF No.
263); and the Motions for Joinder in support of the
Kuusakoski Defendants are GRANTED.
(17-cv-783, ECF Nos. 355, 356, 359, 360, 368; 19-cv-1041, ECF
Nos. 274, 275, 277, 278, 298).
related cases arise under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980
("CERCLA"). (See generally First Am.
Compl.). Plaintiffs allege that Defendants "collaborated
in an elaborate sham recycling scheme that extended across
the country to profit from the stockpiling and subsequent
abandonment of more than 64, 000 tons (128 million pounds) of
hazardous electronic waste ("E-Waste")."
(First Am. Compl. ¶ 2). According to Plaintiffs,
"the costs of removing and/or remediating nearly 10
acres of hazardous e-waste at [Plaintiffs' properties]
... will exceed $14.2 million." (Id.). Thus,
Plaintiffs seek "declaratory relief, cost recovery, and
common law damages resulting from environmental contamination
caused by Defendant Closed Loop, Defendant Silagi, and the
Arranger/Transporter Defendants at two contiguous warehouses
owned by [Plaintiffs] and located at 1655 and 1675 Watkins
Road, Columbus, Ohio 43207." (Id. ¶ 1).
filed their Joint Motion for Approval of Settlement
Agreements on July 23, 2019. (17-cv-783, ECF No. 337-1;
19-cv-1041, ECF No. 259). On August 1, 2019, the Kuusakoski
Defendants filed a Memorandum in Response to the proposed
settlement agreement. (17-cv-783, ECF No. 354; 19-cv-1041,
ECF No. 273). Several other Defendants ("Joinder
Defendants") subsequently joined in the Memorandum filed
by the Kuusakoski Defendants. (17-cv-783, ECF Nos. 355, 356,
358, 359, 360, 368, 373; 19-CV-1041, ECF Nos. 274, 275, 276,
277, 278, 298, 303). Plaintiffs replied on August 12, 2019.
(17-cv-783, ECF No. 394; 19-cv-1041, ECF No. 309).
Accordingly, the Joint Motion is ripe for review.
general policy of the law is to support voluntary
settlements." United States v. Cantrell, 92
F.Supp.2d 718, 723 (S.D. Ohio 2000), In determining whether
to approve a proposed settlement under CERCLA, the Court must
determine whether it is "fair, reasonable and adequate[,
] in other words, consistent with the purposes that CERCLA is
intended to serve." Responsible Envtl Sol. All. v.
Waste Mgmt, Inc., No. 3:04-cv-013, 2011 WL 382617, at *2
(S.D. Ohio Feb. 3, 2011) (quoting United States v. Akzo
Coatings of America, Inc., 949 F.2d 1409, 1435 (6th Cir.
1989). See also United States v. Cannons Eng'g
Corp., 899 F.2d 79, 85 (1st Cir. 1990) ("the trial
court's review function is only to satisfy itself that
the settlement is reasonable, fair and consistent with the
purposes that CERCLA is intended to serve").
Akzo Coatings, the Sixth Circuit stressed that in
determining whether settlement is fair, reasonable and
consistent with the purposes of CERCLA, the District Court
must apply an arbitrary and capricious standard."
Responsible Envtl., 2011 WL 382617, at *2 (citing
Akzo Coatings, 949 F.2d at 1426-1426). Thus, a
CERCLA settlement "must be both procedurally and
substantively fair." Id. (citing Cannons
Eng'g Corp., 899 F.2d at 86). It is not the
court's "function to determine whether [a
settlement] is the best possible settlement that could have
been obtained." Akzo Coatings, 949 F.2d at
respect to procedural fairness, "[t]here is a strong
presumption in favor of voluntary settlements in CERCLA
litigation." United States v. 3MCo., No.
3:14-cv-32, 2014 WL 1872914, at *5 (S.D. Ohio May 8, 2014)
(citing Akzo Coatings, 949 F.2d at 1436). "To
measure procedural fairness, a court should ordinarily look
to the negotiation process and attempt to gauge its candor,
openness, and bargaining balance." Id. at *3
(quoting Cannons Eng'g Corp., 899 F.2d at 86).
For instance, "[p]rocedural fairness requires that
settlement negotiations take place at arm's length."
Id. (quoting In re Tutu Water Wells CERCLA
Litigation, 326 F.3d 201, 207 (3d Cir. 2003)). In
addition, the "Court must determine that the negotiators
bargained in good faith." Cantrell, 92
F.Supp.2d at 724.
Kuusakoski Defendants and Joinder Defendants do not contest
the procedural fairness of the proposed settlements. (See
generally Mem. in Resp.). Moreover, Settlors provide
numerous facts to indicate the procedural fairness of the
negotiation process. First, Settlors represent that
"Plaintiffs' counsel have, by letter, electronic
mail, and/or telephone, invited all of these [potentially
responsible parties ("PRP")] to negotiate
settlements to pay for the removal and remediation of the
[E-Waste] that they contributed to the Facility." (Joint
Mot. at 6) (citing 17-cv-783, Heisler Decl. ¶ 12, ECF
No. 308-3; 17-cv-783, Womack Decl. ¶ 12, ECF No. 308-4).
In addition, Settlors state that all parties to the proposed
settlement agreements were represented by independent counsel
during negotiations. (Id. at 7) (citing Womack Decl.
¶ 13; Defendants' Decl. ¶ 5). Finally, Settlors
point out that the negotiations included "evaluations of
Settlors' potential liability, the evidence tying
Settlors to Plaintiffs' Facility, the defenses asserted
by Settlors, the potential legal fees and costs if settlement
does not occur, and past and projected future remediation
costs." (Id.) (citing Heisler Decl. ¶ 13;
Womack Decl. ¶ 13).
the Court finds that the proposed settlements were negotiated
at arm's length and in good faith. The procedural
fairness prong of the CERCLA settlement analysis is
noted by the United States Supreme Court in Key Tronic
Corp., "two of the main purposes of CERCLA [are to]
prompt cleanup of hazardous waste sites and [the] imposition
of all cleanup costs on the responsible party." 511 U.S.
809, 815 n.6 (1994) (quoting Gen. Elec. Co. v. Litton
Indus. Automation Sys., Inc., 920 F.2d 1415, 1422 (8th
Cir. 1990) (abrogated on other grounds)). Thus, the Court
considers whether Settlors' proposed settlement
agreements are fair, reasonable, and consistent with these
their Memorandum in Response, the Kuusakoski Defendants state
they "do not object to the proposed settlements,
assuming that the Kuusakoski [D]efendants reserve all rights
and that the current proposed settlements do not establish a
precedent that later settlements must contain the same
settlement terms or utilize the same settlement
formula." (17-cv-783, Mem. in Resp. at 2, ECF No. 354).
In other words, "[w]hile the Kuusakoski Defendants do
not object to these proposed settlements, given the early
stage of this litigation, these defendants cannot judge and