On September 12, 2011, a Florida federal district court rejected a proposed consent order that purported to resolve a PRP's CERCLA liability at a site in Florida. The proposed consent order, which tracked U.S. EPA's model order, required the PRP to reimburse U.S. EPA's past response costs and conduct a remedial design/remedial action at a site in Florida. Notwithstanding that no objections were filed, the court, on its own initiative, evaluated whether the proposed consent order would provide the settling PRP with sufficient protection from future liability.
In reaching the conclusion that the consent order did not provide sufficient protection, the court noted that the proposed consent order required the settling PRP to waive its res judicata and other defenses. The court also noted that the proposed consent order provided an expansive reservation of rights on the part of the Government to pursue future claims. In light of the Government's broad reservation of rights and the requirement that the PRP waive its defenses, the court noted that "it is not clear what degree of finality, if any, the consent decree confers upon the [PRP]." The court further noted that because it could not determine what liability had in fact been resolved by the consent order, it could not grant the settling PRP contribution protection pursuant to Section 113(f)(2) of CERCLA. Finally, the court also was critical of U.S. EPA's efforts to impose on the court any kind of timeline on subsequent judicial review or to dictate the applicable standard of review to be applied to disputes arising out of the consent order. We will continue to track this matter to ascertain whether U.S. EPA will modify its model consent order language or seek further review of the district court's order. For a copy of the September 12, 2011 order, please click here.