

                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 &amp;                                                                              
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  &amp; 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. &amp; 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 &amp; 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                                                                         

&amp; 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 &amp; 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  &amp; 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  &amp; 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 &amp; 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  &amp; 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 &amp; 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
