
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 95-1961        No. 95-1984        No. 95-2019                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                          CHARTER INTERNATIONAL OIL COMPANY,                                Defendant, Appellant.                                 ____________________                              ACUSHNET COMPANY, ET AL.,                           Proposed Intervenors-Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                        Cyr, Boudin, and Lynch, Circuit Judges.                                                ______________                                 ____________________            David B. Broughel,  with whom Jeffrey B.  Renton, and Day, Berry &            _________________             __________________      ____________        Howard  were  on  brief,  for  appellant,  Charter  International  Oil        ______        Company.            David  M. Jones, with  whom Roger  C. Zehntner,  Irene C. Freidel,            _______________             __________________   ________________        Phoebe  S. Gallagher  and Kirkpatrick  & Lockhart  were on  brief, for        ____________________      _______________________        proposed intervenors-appellees, Acushnet et al.            Evelyn S.  Ying, Attorney,  United States  Department of  Justice,            _______________        with  whom Lois  J.  Schiffer, Assistant  Attorney General,  Daniel C.                   __________________                                _________        Beckhard  and David C. Shilton, Attorneys, United States Department of        ________      ________________        Justice, were on brief, for the United States as appellee.                                 ____________________                                     May 9, 1996                                 ____________________                    LYNCH, Circuit  Judge.   The clean-up of  a Superfund                    LYNCH, Circuit  Judge.                           ______________            hazardous waste site in New Bedford, Massachusetts is largely            being   accomplished  and   funded  through   agreements  the            government  has reached  with private  parties who  bear some            legal  responsibility for  the  wastes at  the  site.   Those            agreements, by  law, must be  approved by  the United  States            Courts  as being  fair, reasonable,  and consistent  with the            purposes of CERCLA, the Comprehensive Environmental Response,            Compensation  and Liability  Act.   Multiples of  millions of            dollars are involved in these settlements  and the stakes are            high, both for the public and  for the parties involved.  The            allocation of responsibility for payment of those millions --            as  between the  public treasury and  the private  sector and            amongst the private  players themselves -- has  given rise to            complicated  settlement  dynamics.    Those  settlements  are            subject  to  both the  court  approval  mechanism enacted  by            Congress and to specific statutory clauses providing for (and            protecting against) contribution  by some of  the potentially            responsible parties  ("PRPs") to the settlement  sums paid by            other such parties.                    The question  presented here is whether  the district            court  abused its  discretion in  approving a  CERCLA consent            decree  between the government  and Charter International Oil            Company arising  out of the Sullivan's  Ledge Superfund Site.            What is unusual  is that the government and Charter disagreed                                         -2-                                          2            in a very fundamental sense on  interpretation of the consent            decree.    This, in turn,  raises the issue of  the extent to            which  the scope  of "matters  addressed" in  the decree,  an            issue  usually resolved in separate contribution actions, was            required  to  be determined  by  the  district court  in  its            approval of the consent decree.                    Under the rubric  of approval of the decree, two sets            of  private parties here  attempt to battle  out the ultimate            allocation of contribution liability in a clean-up with costs            estimated to be in  the order of $50 million.   Charter urges            that    the   district   court   erred   in   rejecting   its            interpretation,   which   would    give   Charter    complete            contribution   protection  against  prior  settlors  for  its            payment  of  $215,000 plus  interest.    The Acushnet  Group,            comprised of prior settling  parties who have instituted such            a  contribution  action  against  Charter,  urges   that  the            district  court  erred  in  not  resolving  all  contribution            questions in the course of approving the decree.                    We affirm the district court's order.            The Sullivan's Ledge Superfund Site            ___________________________________                    An  old granite quarry in  New Bedford was  used as a            waste  disposal  area by  the city  from  1935 to  the 1970s.            Local   industries  disposed   of  their   wastes,  including            hazardous substances, into four  pits, extending as deep into            the  bedrock as 150 feet.   The contaminants  from the wastes                                         -3-                                          3            spread to  adjacent areas,  including some wetlands  known as            Middle Marsh.                    In  1984,  the EPA  placed  the  area, known  as  the            Sullivan's Ledge Site, on the National Priorities List.   See                                                                      ___            40  C.F.R.  Pt.  300,   App.  B.    It  began   its  Remedial            Investigation  and Feasibility  Study  of  the two  "operable            units" on the Site: the entire Site save for the Middle Marsh            ("first unit") and the Middle Marsh ("second unit").  The EPA            found  significant hazardous  substances in  the groundwater,            soils, and sediments of both units.                    In  June 1989 EPA issued its Record of Decision ("ROD            I")  as  to  the  first   unit,  calling  for  excavation  of            contaminated   soils  and   sediments,  construction   of  an            impermeable cap over the disposal area, groundwater treatment            and wetlands remediation.   The government sued fourteen PRPs            with  respect to  the first  unit (the  Acushnet  Group), who            settled.  See  United States  v. Acushnet Co.,  Civ. No.  91-                      ___  _____________     ____________            10706-K  (D. Mass.).   The  district court entered  a consent            decree  approving and  finalizing the  settlement  (the "1991            Decree").                     Under  the terms  of  the 1991  Decree, the  Acushnet            Group paid $620,000 to the government for past costs incurred            in  connection with ROD I.   The Group also agreed to perform            the  ROD  I  remedy,  including  the  first  thirty years  of            operation and  maintenance,  and  to pay  all  of  the  EPA's                                         -4-                                          4            oversight  costs for  the first  five years  and half  of its            oversight costs through the thirtieth year.                    On September 27, 1991,  after completing its study of            the contamination in the Middle Marsh wetlands area, the  EPA            issued its remedy for the second  unit ("ROD II").  On  April            26,  1993,  the  district  court  entered  a  consent  decree            approving the  settlement between the government  and fifteen            PRPs  (the  Acushnet  Group  and the  City  of  New Bedford).            United States  v. AVX Corp.,  Civ. No. 93-10104-K  (D. Mass.)            _____________     _________            (the "1993 Decree").  The 1993 settlors agreed to perform the            remedy  set forth  in ROD  II and  to pay  half of  the EPA's            oversight costs with respect to the second unit.                    Charter was offered the opportunity to participate in            the  1991 Decree but declined  it, saying that  the price tag            was too high  for what it believed its liability  to be.  The            parties to both the 1991 and 1993 Decrees understood that the            government had a larger total claim relating to the Site than            the recovery  it had obtained  from the initial  settlors and            that  the government  planned to  seek further  recovery from            parties  who had not  yet settled.  That  is exactly what the            government did,  bringing a  series of lawsuits  against non-            settling PRPs,1 including suit against Charter.                                            ____________________            1.  The  government  brought a  cost  recovery  suit for  its            shortfall on the first unit against two non-settlors.  United                                                                   ______            States v.  Cornell-Dubilier Electronics,  Inc., Civ.  No. 92-            ______     ___________________________________            11865-K (D.  Mass.).  The  initial Cornell-Dubilier complaint                                               ________________            sought approximately $2.8 million  and a declaratory judgment                                         -5-                                          5            Proceedings Against Charter            ___________________________                    The government  pursued  Charter under  a  theory  of            successor  liability for  a company,  Pacific Oil,  which had            dumped  soot  from  oil  burners into  the  Sullivan's  Ledge            landfill.2      In   June  1992   the   government  initiated            independent  settlement   negotiations  with  Charter.     On            December  2, 1993, the proposed  consent decree was lodged in            the  district court and  notice was published  in the Federal            Register.3   58  Fed.  Reg.  65,397  (Dec.  14,  1993).    In                                            ____________________            that the  defendants were liable for  the government's future            response costs not covered  by the 1991 Decree.   After entry            of  the  1993 Decree,  the  government  amended its  Cornell-                                                                 ________            Dubilier complaint, adding  three new defendants  and seeking            ________            an additional  $1 million  for costs  relating to  the second            unit.    The City  of New  Bedford,  a defendant  in Cornell-                                                                 ________            Dubilier,  has agreed  to a  proposed decree  for unrecovered            ________            costs  from the  first  unit in  satisfaction  of the  claims            asserted against it in the Cornell-Dubilier suit.                                       ________________               Similarly, seeking  to recover its claims  against parties            not settling in the initial rounds, the Acushnet  Group filed            suit against twelve parties, excluding Charter.  See Acushnet                                                             ___ ________            Co. v. Coaters, Inc., Civ. No. 93-11219-K (D. Mass.).            ___    _____________            2.  Charter disputes  the contention that the  soot contained            high concentration levels of hazardous substances.   Further,            there were  two companies that  used the name  "Pacific Oil":            Durfee Fuels,  a Massachusetts  corporation  and Pacific  Oil            Company, a Rhode Island corporation.   Charter claims that it            was Durfee Fuels  (to which it was  not a successor)  and not            the Pacific Oil  Company (to  which it was)  that dumped  the            soot.                 3.  Section 122(d)(2) of CERCLA requires the Attorney General            to  provide persons who are not parties to a proposed consent            decree  an opportunity  to  comment on  the proposed  consent            decree "before its entry  by the court as a  final judgment."            42 U.S.C.   9622(d)(2)(B).  Further, the Attorney  General is            obligated  to "consider, and file with the court, any written            comments,  views, or  allegations  relating  to the  proposed                                         -6-                                          6            response,  the  Acushnet  Group  filed comments  voicing  its            concern  that  the  decree  might be  interpreted  to  afford            Charter  contribution   protection  against  the   claims  of            settlors  in the 1991 and 1993 Decrees.  Charter responded in            turn, asserting  that the prior settlors' contribution claims            against it were  indeed impaired  by the decree.   In  August            1994, the  government  made  it clear  to  Charter  that  its            position was that the decree  did not grant Charter  complete                                              ___            contribution protection against the claims of  prior settlors            and that it would  press this interpretation with  the court.            Given  their  differing interpretations  of  the decree,  the            government  offered to  let  Charter  withdraw,  but  Charter            declined.                    On February  2, 1995, the government  moved for entry            of  the Charter consent decree.  It presented to the district            court its position  that the decree  did not provide  Charter            with complete contribution protection against prior settlors.            The district court consolidated the consent decree action and            the contribution  action filed by the  Acushnet Group against            Charter  for the limited  purpose of conducting  a hearing to            determine the impact of  the contribution protection issue on            entry  of the  decree.   The Acushnet  Group objected  in the            government's case to  entry of  the decree, but  only if  the                                            ____________________            judgment."  Id.                         ___                                         -7-                                          7            decree  were  interpreted to  provide  Charter  with complete            contribution protection.4                    At   the  consolidated   hearing,  the   court  heard            arguments  on the  proper interpretation of  the decree.   It            gave Charter another opportunity to withdraw from the decree,            but  Charter again declined.  The  district court entered the            decree,  rejecting  Charter's   assertion  that  the   decree            afforded  it complete  contribution protection  against prior            settlors.   The Acushnet  Group's contribution action against            Charter is currently pending before the  district court.  See                                                                      ___            Acushnet  Co. v. Charter Int'l Oil, Civ. No. 94-10989-REK (D.            _____________    _________________            Mass.).              The Consent Decree on Appeal            ____________________________                    Two questions are  raised by this appeal.   The first            is  whether  the  district  court abused  its  discretion  in            approving  the  consent  decree.5     See  United  States  v.                                                  ___  ______________            DiBiase, 45 F.3d  541, 544 (1st  Cir. 1995).   The second  is            _______            whether  its  interpretation of  the  decree  was correct,  a            question  which,  to the  extent it  involves issues  of law,                                            ____________________            4.  Charter's answer  to  the Acushnet  Group's complaint  in            contribution asserted that the claims were barred because the            proposed  decree between  Charter  and the  government  would            provide full contribution protection to Charter under Section            113(f)(2) of CERCLA, 42 U.S.C.   9613(f)(2).             5.      Although  jurisdictional  issues  over  the  Acushnet            Group's proposed  "intervention" in  this appeal lurk  in the            background,  we  need  not  resolve them  since  the  Group's            challenge fails on the  merits.  See Menorah Ins.  Co. v. INX                                             ___ _________________    ___            Reins. Corp., 72 F.3d 218, 223 n.9 (1st Cir. 1995).                ____________                                         -8-                                          8            calls  for fuller appellate review.  See AMF, Inc. v. Jewett,                                                 ___ _________    ______            711 F.2d 1096, 1100-01 (1st Cir. 1983).  On the facts of this            case,  the   first  question  cannot   be  answered   without            addressing the second.                    In  approving a  consent decree,  the  district court            must determine three things:   that the decree is  fair, that            it is reasonable,  and that  it is faithful  to the  purposes            that  CERCLA is intended to serve.   DiBiase, 45 F.3d at 543;                                                 _______            United  States v. Cannons Eng'g  Corp., 899 F.2d  79, 85 (1st            ______________    ____________________            Cir. 1990).  This  assessment entails, in part,  an appraisal            of what the government is being  given by the PRP relative to            what the PRP is receiving.  What is being given by the PRP is            clear:  $215,000 plus interest.  It is what is being received            which implicates  the district court's interpretation  of the            decree and the issue of contribution protection.                    We turn  to the  statutory scheme.   In enacting  the            1986  amendments  to  CERCLA  known as  SARA  (the  Superfund            Amendments  and   Reauthorization  Act  of   1986),  Congress            provided settling  parties with  certain immunity from  later            contribution actions arising from  "matters addressed" in the            consent  decree.    Cannons, 899  F.2d  at  91;  42 U.S.C.                                   _______            9613(f)(2).   As  to such  matters, "only  the amount  of the            settlement  -- not  the pro  rata share  attributable to  the                                    ___  ____            settling  party -- [is] subtracted from  the liability of the            non settlors."  Cannons, 899 F.2d at 91.                            _______                                         -9-                                          9                    Thus,  because  approval of  a  consent  decree under            CERCLA results  in  contribution protection  to the  settling            party, it also affects the rights of PRPs who are not parties            to the decree.   The contribution issue, in turn,  depends on            the scope of "matters addressed" in the settlement, for:                    A person  who has  resolved its  liability to                    the   United  States . . . in   a  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.            42 U.S.C.   9613(f)(2) (emphasis added).                    This  statutory framework contemplates  that PRPs who            do not join in a first-round settlement will be left with the            risk  of  bearing  a  disproportionate  share  of  liability.            "Disproportionate liability, a technique which promotes early            settlements and  deters litigation for litigation's  sake, is            an integral part of  the statutory plan."  Cannons,  899 F.2d                                                       _______            at  92.                    Further,  the legislative history  of SARA shows that            Congress contemplated that there would be partial settlements            which  would leave  settling parties  liable for  matters not            addressed in the agreement:                    This protection attaches only to matters that                    the  settling  party  has resolved  with  the                    [government].    Thus,  in  cases  of partial                    settlements where, for  example, a party  has                    settled with  the [government] for  a surface                                         -10-                                          10                    clean  up,  the settling  party shall  not be                    subject  to any  contribution  claim for  the                    surface clean  up by any party.   The settlor                    may, however, remain liable in such instances                    for  other  clean  up  action  or  costs  not                    addressed by the settlement  such as, in this                    example, a subsurface clean up.            Statement of Senator  Stafford (sponsor of S.  51, the Senate            bill for  the 1986 SARA  Amendments), 131  Cong. Rec.  24,450            (1985).                    Here,  two groups  are  settlors and  each seeks,  on            opposite  sides of  the coin,  the value of  the contribution            proviso.   The Acushnet  Group, which settled  earlier, wants            its  contribution  rights against  Charter  arising from  the            Sullivan's Ledge  Site clean-up maximized.   Charter, a later            settlor, wants to cut off all contribution claims against it.            For  purposes  of  establishing  the  scope  of  contribution            protection afforded to Charter by the decree under  42 U.S.C.              9613(f)(2), it would be necessary to determine the scope of            "matters addressed" by the decree.                    This  case, however,  involves approval of  a consent            decree  and is  not a  suit for  contribution.   The district            court believed, as  do we,  that it was  required to  resolve            only certain aspects of  the dispute over "matters addressed"            in order  to fulfill  its responsibilities in  evaluating the            consent  decree.   Not every  aspect of  interpretation of  a            consent  decree (or  even  the precise  contours of  "matters            addressed") need be resolved in the course of approval of the                                         -11-                                          11            decree.6    Rather, the  court must  address  so much  of the            interpretation of the consent decree as needed to rule on the            decree's  fairness,   reasonableness  and  fidelity   to  the            statute.7   See  United  States v.  Charles George  Trucking,                        ___  ______________     _________________________            Inc., 34 F.3d  1081, 1088-89 (1st Cir.  1994).  There  may be            ____            prudential reasons, as this case demonstrates, not to resolve            more  as  to "matters  addressed"  than is  necessary.   Such            reasons, for example, may be related to uncertainty as to the            specific fact  situations  in which  contribution claims  may            arise or to  the absence  of parties whose  interests may  be            affected.8   As  Aristotle noted,  wisdom  does not  seek for                                            ____________________            6.  For example, in order to achieve an agreement the parties            may,  on  relatively  minor  matters,  engage  in  purposeful            ambiguity, leaving to  another day a  battle which may  never            need to be fought.  If  that ambiguity is not material to the            tripartite test for approving a  consent decree, it would not            be necessary to resolve  it.  Perforce, it may  be preferable            to leave it unresolved.            7.  Although the option  was open to  it, the district  court            chose not to  consolidate the approval of  the consent decree            and  the contribution  action,  for all  purposes.   District            courts  may find such a consolidation useful, if the cases so            warrant, to expedite and  clarify matters.  But they  are not            required to  do so.   See Fed.  R. Civ. P.  42(a); 9  Moore's                                  ___                             _______            Federal Practice   42.02.             ________________            8.  The arguments of the Acushnet Group and Charter, that the            district court  was required  to determine  in the course  of            approving  the consent  decree  all aspects  of all  possible            contribution claims, prove too much.  The    district   court            noted that  "[t]o the extent that there  is uncertainty about            the precise implication"  that the  settlement agreement  may            have, "it may be  necessary in later proceedings for  this or            another  court   to  interpret  both  the   statute  and  the            agreement."   It would have  been premature for  the district            court  to issue a broad order without specific facts on which            to base its  ruling.  Cf. Charles George Trucking, 34 F.3d at                                  ___ _______________________                                         -12-                                          12            greater  precision than  the  nature of  the subject  admits.            Aristotle, Nicomachean Ethics I.3, 1094b23-28 (Martin Ostwald                       __________________            ed. & trans., 1962).            Interpretation of the Decree            ____________________________                    We dispose first of an  initial argument.  The United            States  urges that,  by  consenting to  entry of  the decree,            Charter  has  waived  its  right to  challenge  the  district            court's interpretation of the decree.  We disagree.  "[I]t is                    ______________            possible  for  a party  to consent  to  a judgment  and still            preserve his right to appeal," so long as he "reserve[s] that            right unequivocally."   Coughlin v. Regan, 768 F.2d  468, 470                                    ________    _____            (1st Cir. 1985).   Charter's Notice of  Objection makes clear            that  it objected to, and  intended to preserve  its right to            appeal,  any interpretation  of the  decree that  afforded it            less than full protection against contribution claims arising            out of the Sullivan's Ledge Site.  That suffices.                    Charter says  the decree must be  interpreted so that            the "matters  addressed" by it  encompass all aspects  of the            clean-up  and  remediation  of  the  Sullivan's  Ledge  Site,            including  all  "matters  addressed"  in the  1991  and  1993            Decrees.   Charter  argues, consequently,  that it  cannot be            reached for contribution  at all.   The government says  that                                            ____________________            1088.   The district  court was also  appropriately concerned            that  not all  potentially affected  parties were  before it.            The  district court did what was necessary in order to decide            the issues on approval of the decree and it was certainly not            error to go no further.                                         -13-                                          13            the "matters addressed" in the Charter  decree do not include            the  clean-up work  that  the prior  settlors are  performing            under their consent decrees.   Therefore, it asserts that the            Charter decree  does not cut off  completely the contribution            rights  of  prior  settling  parties  against  Charter  under            Section 113(f) of  CERCLA   for costs of  remediation of  the            Site.    The  government   further  says  that  the  "matters            addressed"  in  the   consent  decree   encompass  only   the            government's  "remainder"  case   against  Charter  for  that            portion of the overall site liability  that was not addressed            in the  prior settlements,  i.e., the government's  claim for                                        ____            the past and  future response costs that  were not reimbursed            or covered by the prior settlements and for implementation of            those aspects  of RODs I and II that are not performed by the            prior settlors.                    The district  court did  rule on  this dispute as  to            "matters  addressed," and  ruled  against Charter.   It  left            other  aspects to  be resolved  in the  parallel contribution            action brought by the Acushnet Group against Charter.                     In  reviewing  the  district court's  ruling  on  the            "matters addressed"  by the  decree we  look to  the decree's            "four corners."  See United States  v. Armour & Co., 402 U.S.                             ___ _____________     ____________            673, 681-82 (1971).   In   United States  v. ITT  Continental                                       _____________     ________________            Baking Co., 420 U.S.  223 (1975), the Court expounded  on the            __________            "four corners" rule of Armour:                                   ______                                         -14-                                          14                    Since  a consent  decree  or order  is to  be                    construed for  enforcement purposes basically                    as a contract, reliance upon certain  aids to                    construction is proper, as with any contract.                    Such    aids   include    the   circumstances                    surrounding  the  formation  of  the  consent                    order, any technical  meaning words used  may                    have  had  to  the  parties,  and  any  other                    documents   expressly  incorporated   in  the                    decree.            Id. at 238.            ___                    The district  court held that it  would not interpret            the   decree  as   Charter   contended  and   that  such   an            interpretation  "would be  extreme in  its consequence  as to            what   the    government   gave   up   compared    with   the            disproportionately small cash sum the  government received in            return."  It further stated that such an interpretation would            be "disapproved as contrary to the public interest."                    The  determination of interpretation of the decree is            iterative  and proceeds  incrementally, as  in most  areas of            law,  with  priorities  for   reaching  different  levels  of            analysis.   Cf. Lomas Mortgage, Inc., v.  Louis, No. 95-1956,                        ___ ____________________      _____            __ F.3d __, __, slip  op. at 9-10 (1st Cir.  1996) (statutory            interpretation starts with the  plain meaning of the statute,            but where  the statute is ambiguous,  legislative history may            be considered); Massachusetts v. Blackstone Valley Elec. Co.,                            _____________    ___________________________            67 F.3d 981, 987 (1st Cir. 1995) (same).  As in most contract            interpretation questions, we start  here with the text.   See                                                                      ___            Fashion House, Inc. v. K Mart Corp., 892 F.2d 1076, 1083 (1st            ___________________    ____________            Cir. 1989).                                         -15-                                          15                    Unfortunately, apparently due  to EPA  policy at  the            time,9  there is  no explicit  "matters addressed"  clause in            the  agreement.    Charter  argues  that,  nonetheless,   the            district  court should  have interpreted  "matters addressed"            broadly in light of  the contribution protection and covenant            not to sue  clauses of  the agreement, as  well as  extrinsic            evidence, particularly of the parties' negotiating history.                    In  the  absence of  explicit  language,  the parties            agree, citing to contribution  cases from other circuits, one            must first  look elsewhere to  determine "matters addressed."            Different circuits have taken somewhat  different approaches.            In Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761 (7th Cir.               ___________________    ____________            1994), the  Seventh Circuit  started with the  decree itself,            and, in the absence of  an express "matters addressed" clause            looked to various factors including "the particular location,            time frame, hazardous substances, and clean-up  costs covered            by the agreement."  Id. at 766.   That court recognized, over                                ___            a dissent, that its "flexible, fact-based approach" would not            offer  the "settling parties the same degree of repose as one                                            ____________________            9.  The  absence  of  specific  language  concerning "matters            addressed" might be thought  to be of concern to the  EPA and            the  public.    Having   the  scope  of  "matters  addressed"            specifically agreed upon should lead to greater certainty and            finality.     That  certainty  and  finality  are  attractive            inducements  to  settle.    The  uncertainty  and  continuing            litigation which  this case  exemplifies could reasonably  be            thought  to be  a  deterrent to  others  to settle  with  the            government.   Charter  advises  us  that the  EPA,  in  1995,            changed  its policy  to require  that "matters  addressed" be            specified.                                            -16-                                          16            based solely  on the facial  breadth of the decree."   Id. at                                                                   ___            767-68.   The dissent preferred a  broader reading, reasoning            that more comprehensive contribution protection would lead to            more  settlements.     See  id.  at   773  (Easterbrook,  J.,                                   ___  ___            dissenting).  The Tenth Circuit  in United States v. Colorado                                                _____________    ________            & Eastern R.R. Co., 50 F.3d 1530, 1538 (10th Cir. 1995), took            __________________            a related  "fact-specific approach,"  laying the  earlier and            the      later      "consent      decrees     [and      their            attachments] . . . . side by  side and comparing  the matters            covered in  relation to the  remediation completed . . . . at            the date of the [second] consent decree."                      We  reject  any  argument  that  Section  113(f)(2)            itself warrants a broad  understanding of "matters addressed"            by the decree,  just as Colorado & Eastern, 50  F.3d at 1537-                                    __________________            38,  and Akzo, 30 F.3d  at 765, 770,  rejected this argument.                     ____            The  statute  does  not  dictate any  particular  method  for            assessing the scope of the decree.  See Akzo, 30 F.3d at 765.                                                ___ ____            Thus,  the district  court  appropriately rejected  Charter's            argument based on paragraph 16 of  the proposed decree, which            provides:                    With  regard  to   claims  for   contribution                    against  [Charter]  for matters  addressed in                    this  Consent Decree the parties hereto agree                    that [Charter] is entitled to such protection                    from contribution  actions  or claims  as  is                    provided  by  CERCLA  Section  113(f)(2),  42                    U.S.C.   9613(f)(2).                                         -17-                                          17            This  language  simply  repeats  the  statutory  contribution            language  of  Section  113(f)(2),  without  defining "matters            addressed."   Charter says that  this language in  the decree            would  be meaningless  unless its interpretation  is adopted.            That  is  not so.   The  language  may provide  protection to            Charter  should  the  government  later  recover  from  other            parties a part of its claim.                     We  confine ourselves to  the text of  the decree and            find  the answer there, thus  not reaching the  issue of what            other  interpretive guides,  if  any, are  permissible  under            CERCLA.   We are  unpersuaded by Charter's  argument that the            text of the decree supports its reading.  We believe that the            text  of the  decree  as  to: (i)  the  scope of  the  claims            purported to be  brought and settled; (ii)  the definition of            the response  costs being  reimbursed by the  settlement; and            (iii)   the  explicit  references   to  the   prior  decrees,            forecloses Charter's interpretation.                    Charter relies heavily  on the decree's  covenant not            to  sue  clause, which  prevents  the  government from  suing            Charter  "pursuant to Sections  106 and 107(a)  of CERCLA and            Section  7003 of  RCRA relating  to the  Site, including  for            reimbursement of Response costs  or for implementation of ROD            I or  ROD II."  But  that the government has  promised not to            sue Charter  says nothing about  the intention as  to whether            other, prior settling  parties were to  have their rights  of                                         -18-                                          18            contribution  against Charter extinguished by this agreement.            The one does not necessarily follow from the other.                    Untoward and  congressionally unintended consequences            would flow from  Charter's reading.   As the Seventh  Circuit            observed in Akzo:                        ____                    If the covenant not to sue alone were held to                    be determinative of the scope of contribution                    protection,  the United  States would  not be                    free to release settling parties from further                    litigation  with  the United  States, without                    unavoidably  cutting  off  all private  party                    claims for response costs.            30  F.3d at 766 (quoting  brief of United  States as amicus).            We agree.   The  government may have  reasons to give  such a            covenant unrelated  to an intent to  grant broad contribution            protection against prior settlors.                    We find  dispositive instead  the text of  the decree            establishing  that  Charter  was  sued  on  the  government's            remainder case, that the government sought and Charter agreed            to reimburse the government for its response costs as to that            remainder  case,  and that  the  remainder  case was  defined            against the backdrop of the prior settlements.                    The text  describing the scope  of the  claims to  be            brought   and   settled    undermines   Charter's    proposed            interpretation:                    The  United  States  in its  complaint  seeks                    reimbursement of response costs  incurred and                    to be  incurred by EPA and  the Department of                    Justice  for  response actions  in connection                    with the  release  or threatened  release  of                    hazardous substances at the  Sullivan's Ledge                    Superfund  Site  in   New  Bedford,   Bristol                                         -19-                                          19                    County, Massachusetts . . . and a declaration                    of  the  defendants'  liability  for  further                    response costs.            Neither the complaint nor the  decree asserts a claim against            Charter for  the remediation work being done  by the Acushnet            Group.  A  reading of a decree  which far exceeds  the relief            sought  by  plaintiffs'  complaint   would  be  strained  and            doubtful.   See  Navarro-Ayala v.  Hernandez-Colon, 951  F.2d                        ___  _____________     _______________            1325, 1341 (1st Cir. 1991).  Even crediting the argument that            some settlements  may exceed the boundaries of claims made in            the complaint,10 there is  nothing in this decree to  lead to            that result.11                                            ____________________            10.  Cf.  Charles  George Trucking, 34 F.3d  at 1090 (consent                 ___  ________________________            decree   may   resolve   claims  for   damages   not  pleaded            specifically, if the parties so intend, so long as the claims            are within the general scope of the pleadings).            11.  We  note the  potential  problem of  the government  not            honoring its  agreement with  prior  settlors by  collusively            agreeing  with  subsequent  settlors  on  language  in  their            agreement broader than the claims the government made against            those  subsequent  settlors.    Cf.  Akzo,  30  F.3d  at  774                                            ___  ____            (Easterbrook,  J.,  dissenting)  (making  an  analogous point            about the government inducing PRPs to enter large settlements            with promises of broad contribution protection and then later            urging the  district court  to arrive  at a  narrow reading).            That is not this case.  The district court here expressed its            skepticism   that  the   earlier  settlement   empowered  the            government  to  do whatever  it  wished  about impairing  the            contribution rights that were  retained by the prior settling            parties.   The  government has  expressly disavowed  any such            intention.                  In  addition, the government has a serious disincentive            to collude with later settlors to cut off the rights of prior            settlors just to extract  a higher second-round settlement in            a single clean-up proceeding.   It is the government  that is            the repeat player in  the world of CERCLA clean-ups.   Should                ______            the  government  develop  a  reputation  for  cheating  early            settlors,  that would  deter settlements  in later  clean-ups                                         -20-                                          20                    The definition  of response costs in  the decree also            does  not  support  Charter's  interpretation.    The  decree            defines Charter's $215,000 payment as being "in reimbursement            of  Response Costs,"  which are  defined as  the government's                                                             ____________            response  costs.   The  decree says  "the  United States  has            incurred, and  will continue  to incur, response  costs which            have  not been recovered under the 1991 Consent Decree or the            1993 Consent Decree."   The decree estimates the government's            shortfall to exceed $4  million in such response costs.   The            decree  also  indicates  that  the  government  evaluated the            $215,000  to be paid by Charter in terms of these unrecovered            costs  of  at  least  $4  million  and  the  risk  that  some            remediation work may not be completed by other settlors.  The            amount was not evaluated against  the total costs of clean-up            at the Sullivan's Ledge Site.                      Further,  as the government  points out,  the Charter            decree explicitly  refers  to the  earlier decrees.   In  the            prior settlements  the Acushnet  Group did  not  give up  the            right  to seek contribution from  those who were  not part of            those  settlements.   The  prior  settlements are  explicitly            referenced and described  in the Charter decree.   Under such            circumstances  we  may consider  these  prior  settlements in            interpreting the  decree.    Cf. ITT Continental  Baking, 420                                         ___ _______________________                                            ____________________            (and reduce  the amounts early-round settlors  are willing to            pay)  and  hence, in  the  long  run,  hurt the  government's            interests.                                         -21-                                          21            U.S. at 238.  In light of these considerations,  we hold that            the   text   of   the   decree   supports  the   government's            interpretation and  not Charter's and so  affirm the district            court's ruling on this point.                    Charter argues that the  decree is ambiguous and that            extrinsic evidence of the  negotiating history of the parties            demonstrates that  Charter was intended to  be protected from            all contribution claims. Cf. Thomas Hobbes, Leviathan Ch. XI,                                     ___                _________            at  84   (Michael  Oakeshott  ed.  1962)   (1651)  (men  call            indeterminate that  which they  wish to contest  because they            have  interests  at  stake).     While  in  routine  contract            interpretation extrinsic  evidence may be considered when the            disputed  terms  are ambiguous,  we  do not  find  the decree            ambiguous,  and  such  evidence  may  not  be  considered  to            contradict  the written terms of the  agreement.  See Brennan                                                              ___ _______            v. Carvel Corp., 929 F.2d 801, 808 (1st Cir. 1991).               ____________                    Even so,  we  doubt, but  do not  decide, whether  in            interpreting a CERCLA consent  decree it would be appropriate            to rely on the  type of extrinsic evidence  Charter proffers.            This court has at times considered certain types of extrinsic            evidence in interpreting decrees  in public institution civil            rights  actions.  See Navarro-Ayola,  951 F.2d at  1343.  But                              ___ _____________            CERCLA settlements, unlike ordinary contract  formation, take            place  in  a  unique  statutory framework.    That  framework            requires that before a decree is entered by the court, notice                                         -22-                                          22            of  the  decree be  published,  there be  an  opportunity for            public comment, and that the Attorney General take account of            the  commentary and  reserve  the right  to withhold  consent            should the  commentary show  the decree to  be inappropriate.            42 U.S.C.   9622(d)(2).  That  public comment is part of  the            record  before  the  district  court.    Id.   The  statutory                                                     ___            structure  thus assumes that the  public will be given access            to the relevant documentary information  on the decree.   The            evidence  of the negotiating  history which Charter proffered            was not within the information the public had available.12                    It is  worth  asking why  the  court should  enter  a            consent decree when there was  a fundamental dispute over the            effect of the decree.  There are two responses.  The first is            that  Charter  expressed its  intent  to  live with  whatever            interpretation the court ultimately gave the decree. There is            no unfairness to  Charter.  When Charter said that it had not            understood the government's position to be that Charter would            not  be   afforded  complete  contribution   protection,  the            government  offered to  allow  Charter to  withdraw from  the            agreement.   Charter declined.   Charter knew  the government            would  present  a  contrary interpretation  to  the  district                                            ____________________            12.  Even were we to  adopt Charter's method of analysis,  we            see nothing in the  negotiating materials that indicates that            the  government intended to  undercut its earlier settlements            with the Acushnet Group or that it ever agreed with Charter's            view  on the scope of contribution protection afforded by the            decree.                                          -23-                                          23            court.   Charter also knew  that courts are  required to give            some deference to  the judgment of the Attorney  General that            the settlement  is appropriate.13   Charles George  Trucking,                                                ________________________            34  F.3d at  1085.   In  addition,  the district  court  gave            Charter the  opportunity to  withdraw from the  settlement in            the face  of a contrary  government position and  the court's            statement that  it would  most likely rule  against Charter's            interpretation.  Charter again declined.  Counsel for Charter            informed the court that, win or lose in its interpretation of            the decree, Charter preferred  to have an agreement  with the            government.  Such  an agreement, Charter  acknowledged, would            both provide it with some  contribution protection and get it            out  of costly  litigation with the  government.   Indeed, on            appeal, Charter does not ask us to vacate the decree.  Rather            its position is that the decree should be upheld and that its            interpretation should be substituted for that of the district            court.                    Second,  while  a  different  case might  lead  to  a            different result,  we think  that the policies  behind CERCLA            are better served here by holding Charter to the consequences            of its  roll  of  the dice.    Perhaps mindful  of  the  huge                                            ____________________            13.  We   reject  the  Acushnet  Group's  argument  that  the            district court is required to defer to the Attorney General's            judgment to the extent  of exercising no independent judgment            of  its own.  See Charles  George Trucking,  34 F.3d  at 1085                          ___ ________________________            (although in entering a decree a district court must defer to            the  EPA's judgment and to  the parties' agreement,  it has a            responsibility to exercise its independent judgment).                                         -24-                                          24            resources  going  into  the  transactions   costs  of  CERCLA            litigation,  rather   than   to  remediating   the   sites,14            Congress sought  in SARA to encourage  earlier resolutions by            agreement.   See United States  v. SCA Servs.  of Ind., Inc.,                         ___ _____________     _________________________            827 F. Supp. 526, 530-31  (N.D. Ind. 1993).  If a  party were            permitted to use the consent decree process to delay, whether            in  good faith  or by design,  and then  to undo  a decree by            saying  its understanding  of the  base terms  was different,            then  the  congressional purposes  would  be  undercut.   Cf.                                                                      ___            Menorah,  72  F.3d at  223.   Given that  Charter voluntarily            _______            chose  to consent to the decree, despite the significant risk            of an  interpretation contrary to  its interests, it  was not            unreasonable  for  the district  court  to  have entered  the            decree.            Approval of the Consent Decree            ______________________________                    There  was no  abuse  of discretion  by the  district            court in approving the decree,  as based on the  government's                                            ____________________            14.  See  Jan Paul  Acton  & Lloyd  S.  Dixon, Superfund  and                 ___                                       ______________            Transaction Costs:  The Experience of Insurers and Very Large            _____________________________________________________________            Industrial   Firms   32   (1992)(estimating   that   of   the            __________________            approximately  $470  million paid  in  1989  by insurers  for            hazardous waste clean-ups, 88% went to legal costs); see also                                                                 ___ ____            Lloyd  S.   Dixon,  The  Transactions   Costs  Generated   by                                _________________________________________            Superfund's  Liability Approach 183,  in Analyzing Superfund:            _______________________________       __ ____________________            Economics, Science  and Law, (Richard L. Revesz  & Richard B.            ___________________________            Stewart eds.,  1995)(noting that  for 1991 alone  the private            sector  incurred over  $4  billion  in  transactions  costs);            William  N. Hedeman  et al.,  Superfund Transaction  Costs: A                                          _______________________________            Critical Perspective  on the  Superfund Liability  Scheme, 21            _________________________________________________________            Envtl. L. Rep. 10413, 10423 (1991) (30-60% of hazardous waste            clean-up funds go to lawyers).                                          -25-                                          25            interpretation.   We  note  that Charter  does not  seriously            challenge  on  this  point,  preferring  to  argue  that  its            interpretation is mandated and that its interpretation  meets            the tripartite  test.  The district court,  before entering a            consent  decree, is  obliged to  determine that  it is  fair,            reasonable and consistent with the goals of CERCLA.  DiBiase,                                                                 _______            45 F.3d  at 543;  Cannons,  899 F.2d  at 85.    In turn,  "an                              _______            appellate court  may overturn a district  court's decision to            approve or reject the  entry of a CERCLA consent  decree only            for manifest abuse of  discretion."  Charles George Trucking,                                                 _______________________            34 F.3d at 1085.                      Under the terms  of the decree Charter  agreed to pay            $215,000  plus interest,  in settlement  of the  government's            claims of  approximately $4  million in  unrecovered response            costs  for the  first  and second  units.   In  exchange  the            government  covenanted  not  to  sue  or take  administrative            action against  Charter "pursuant to Sections  106 and 107(a)            of  CERCLA  or Section  7003 of  RCRA  relating to  the Site,            including    for   reimbursement   of   Response   Costs   or            implementation   of  ROD  I  or  ROD  II."15    Charter  also                                            ____________________            15.  The  government's  covenant not  to  sue  is subject  to            certain  reservations, including:  (a) that  with respect  to            future  liability, the covenant not to sue does not come into            effect until  certification by  the EPA that  remedial action            for  the site under  ROD I and  Rod II is  completed; and (b)            reopener  provisions  which  allow  the  government  to  seek            further   relief   if   previously  unknown   conditions   or            information reveal that the remedial actions for the site are            not protective of human health or the environment.                                         -26-                                          26            receives  protection against  contribution  claims  of  other            parties  from whom the  government might subsequently recover                                                     ____________            all or part of its multi-million dollar remainder claim.            Fairness & Reasonableness            _________________________                     Fairness  has a procedural  component (involving the            negotiation  process, see Cannons, 899 F.2d  at 85), which is                                  ___ _______            not at  issue here,  and a  substantive component, which  is.            Id.  at  86.    "Substantive  fairness  introduces  into  the            ___            equation concepts  of corrective justice  and accountability:            a  party should  bear the cost  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."  Cannons, 899                                                             _______            F.2d  at  87 (citations  omitted);  see  also Charles  George                                                ___  ____ _______________            Trucking,  34  F.3d  at 1089  (so  long as  the  basis  for a            ________            sensible   "approximation   `roughly  correlated   with  some            acceptable   measure   of    comparative   fault'"    exists,            "difficulties   in   achieving   precise    measurements   of            comparative  fault  will  not  preclude a  trial  court  from            entering  a consent  decree"  (quoting Cannons,  899 F.2d  at                                                   _______            87)).                                         -27-                                          27                    A  district court's reasonableness inquiry, like that            of  fairness,  is  a  pragmatic one,  not  requiring  precise            calculations.   See Charles George  Trucking 34 F.3d  at 1085                            ___ ________________________            (depth  of inquiry  depends  on the  context and  information            available  to the court).  The question is whether the decree            provides for an efficient clean-up and adequately compensates            the public for its  costs, in light of the  foreseeable risks            of loss.  See Cannons, 899 F.2d at 89-90.  Because the first-                      ___ _______            round  settlors  have  already  contracted  to implement  the            clean-up,  we  review only  the  adequacy  and efficiency  of            implementing the cash settlement  reached here.  This amounts            to asking  whether the  terms of  the settlement  are roughly            proportional  to  Charter's responsibility  and  whether they            serve the public interest.                    Approval of Charter's cash-out settlement of $215,000            plus  interest  in  exchange  for  both limited  contribution            protection  and  a  limited  covenant  not  to sue  from  the            government cannot be said  to constitute a manifest abuse  of            discretion.  Although $215,000 is small  in absolute terms as            compared to the government's total unrecovered response costs            of  $4  million,  it  must  be  evaluated  in  context.    In            particular, Charter's liability  in this case was  uncertain.            It was not clear  whether Pacific Oil, the company  which had            contributed  to  the  wastes   at  the  Site,  was  Charter's            predecessor.  The degree to which the predecessor's wastes --                                         -28-                                          28            soot  from oil  fuel --  contained hazardous  substances that            would have  contributed to the Site's  contamination was also            at issue.  Given  the potentially high costs of  litigating a            difficult case  against Charter and the benefit  of a certain            cash  settlement (and  the limited  contribution protection),            the $215,000 plus interest payment passes muster.  This court            explained in Cannons:                         _______                    In  a  nutshell,  the  reasonableness   of  a                    proposed  settlement  must take  into account                    foreseeable  risks of  loss. . . .   The same                    variable,   we   suggest,   has   a   further                    dimension: even if  the government's case  is                    sturdy, it may take time and money to collect                    damages  or  to  implement  private  remedial                    measures  through litigatory success.  To the                    extent  that  time  is  of  essence  or  that                    transaction  costs  loom large,  a settlement                    which nets less than  full recovery of clean-                    up  costs  is  nonetheless  reasonable. . . .                    The  reality   is   that,  all   too   often,                    litigation is  a cost-ineffective alternative                    which can squander valuable resources, public                    as well as private.             899 F.2d at 90  (citations omitted).  In addition,  there are            other non-first-round settlors against whom the government is            currently seeking to recover the  remainder of its $4 million            claim.                    The  question arises  as  to whether  the decree,  as            entered, unfairly hurts the interests of third  parties.  See                                                                      ___            Charles George Trucking, 34  F.3d 1085-89 (addressing  third-            _______________________            party  challenge  to entry  of CERCLA  consent decree).   For            purposes of  our review,  the district  court's determination            that  the  decree  does  not  represent  a  complete  bar  to                                         -29-                                          29            contribution  claims  that first-round  settlors  expected to            have against those  that did  not settle along  with them  is            adequate to  pass the abuse  of discretion threshold.16   Cf.                                                                      ___            Charles  George Trucking,  at 1088 (in  entering a  decree it            ________________________            might be better to  leave technical disputes between settling            parties in a class to the discourse between them).  As to the            extinguished  contribution  claims of  non-settlors  or later            round  settlors,  protection  against  those   claims  was  a            reasonable benefit Charter acquired in exchange  for settling            before those others.                           Fidelity to the Statute            _______________________                    As we noted in Cannons, the two major policy concerns                                   _______            underlying  CERCLA are  ensuring  that  prompt and  effective            clean-ups  are put into place  and making sure  that the PRPs            responsible for the  hazards created  bear their  approximate            share of the responsibility.   899 F.2d at 89-91;  cf. United                                                               ___ ______            States v. Rohm  & Haas  Co., 721  F.Supp. 666,  680 (D.  N.J.            ______    _________________            1989) (noting Congress' goal of expediting effective remedial                                            ____________________            16.  In the separate contribution action between the Acushnet            Group  and Charter,  Charter  had asserted  that the  consent            decree provided  it with  an affirmative defense  against the            Acushnet Group's contribution claims.  The Acushnet Group, in            turn,  moved for summary judgment on the issue of whether the            decree afforded Charter such a  defense.  The district  court            denied  the motion  without  ruling on  its  merits.   It  is            basically  that motion  that the  parties want us  to decide.            However, absent  unusual circumstances,  denial of a  summary            judgment motion  is not  independently appealable as  a final            order.  See Pedraza v. Shell Oil Co., 942 F.2d 48, 54-55 (1st                    ___ _______    _____________            Cir.  1991), cert.  denied, 502  U.S. 1082  (1992).   No such                         _____  ______            circumstances exist here.                                         -30-                                          30            action and minimizing litigation).  Both  these goals and the            honoring of the settlement  dynamics Congress created in SARA            are effectuated here.                    CERCLA, through Section 113(f)(2),  provides settling            parties with broad contribution protection so as to encourage            them to settle early.   See Browning-Ferris, 33 F.3d  at 102-                                    ___ _______________            03.   However, CERCLA also  aims to induce  those parties who            settle  earlier to do so  for higher amounts  than they might            otherwise  by assuring  them the  right to  seek contribution            protection from those  who have  not as yet  settled.17   See                                                                      ___            42  U.S.C. 9613(3)(B); see also  S. Rep. No.  11, 99th Cong.,                                   ___ ____            1st Sess. 44 (1985); cf. Colorado & Eastern, 50  F.3d at 1535                                 ___ __________________            (Section  113(f)(1) was  intended to  enable those  bearing a            disproportionate  share of  the  liability in  a clean-up  to            recover from others).   Hence, a  decree that is read  not to            provide  second-round  settlors  with  complete  contribution            protection against prior settlors is consistent with the goal            of enabling  the government  to enter  into  early and  large                                            ____________________            17.  An early cash-out  settlement may sometimes require  the            settling  party to pay a premium for the risks the government            bears out of the uncertainty of the total cost of the remedy.            As more is known about the site and as the government decides            on  the  precise  remedy,  that uncertainty,  and  hence  the            premium, is reduced, but not eliminated.  Here, there were no            settlements  until the  RODs were issued  and the  remedy was            outlined.  Nonetheless,  early settlors,  even post-ROD,  may            pay some premium.  Settlors  who actually perform the remedy,            such  as the Acushnet Group,  assume the risks  of the actual            costs of performance.  Congress may well have thought it fair            to  require later settlors to bear a share of those risks and            premiums.                                            -31-                                          31            settlements.   Cf. Akzo,  30 F.3d 767  (interpreting "matters                           ___ ____            addressed" clause  of decree not to  bar the claims  of a PRP            that  had undertaken  remedial  work prior  to  entry of  the            decree); United  States v.  Alcan  Aluminum, Inc.,   25  F.3d                     ______________     _____________________            1174, 1186  n.17 (3d  Cir. 1994)  (in light  of  the goal  of            promoting  early  large  settlements,   the  assertion  of  a            contribution  defense by  a  second-round  settlor against  a            first-round  settlor  is   far  more  problematic  than   its            assertion against a non-settlor).            Conclusion            __________                    The  district  court's  order  entering  the  consent            decree is affirmed.                      ________                                         -32-                                          32
