
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          Nos. 93-1691               93-2372                          UNITED STATES OF AMERICA, ET AL.,                                Plaintiffs, Appellees,                                          v.                        CHARLES GEORGE TRUCKING, INC., ET AL.,                               Defendants, Appellants.                              _________________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                              _________________________                                        Before                            Selya and Cyr, Circuit Judges,                                           ______________                             and Zobel,* District Judge.                                         ______________                              _________________________               Richard  E. Bachman,  with  whom  John  A.  King  and  Hale,               ___________________               ______________       _____          Sanderson, Byrnes & Morton, were on brief, for appellants.          __________________________               John  C.  Cruden,  with   whom  Louis  J.  Schiffer,  Acting               ________________                ___________________          Assistant  Attorney   General,  Robert   H.   Oakley,  David   W.                                          ____________________   __________          Zugschwerdt,  David  C.  Shilton,  and   Elizabeth  A.  Peterson,          ___________   __________________         _______________________          Attorneys, U.S. Dep't  of Justice, and Ruthann Sherman, Office of                                                 _______________          Regional Counsel (EPA), for the federal appellee.               Scott  Harshbarger,  Attorney  General,  Karen  McGuire  and               __________________                       ______________          Margaret  Van  Deusen,  Assistant  Attorneys  General,  and Nancy          _____________________                                       _____          Preis, Special Assistant Attorney  General, on brief for appellee          _____          Commonwealth of Massachusetts.               Paul  B.  Galvani, with  whom Thomas  H. Hannigan,  Jr., Jay               _________________             _________________________  ___          Bradford  Smith,  and Ropes  & Gray  were  on brief,  for various          _______________       _____________          appellees.               Laurence M. Johnson, Fordham & Starrett, Michael D. Chefitz,               ___________________  __________________  __________________          and Gilberg,  Kurent &  Kiernan, on  brief for  appellees Charles              ___________________________          George, Jr., et al.               Mark  S. Granger and Morrison, Mahoney & Miller on brief for               ________________     __________________________          appellee Boston Edison Co.                              _________________________                                  September 13, 1994                              _________________________          ______________          *Of the District of Massachusetts, sitting by designation.                    SELYA, Circuit  Judge. These  appeals arise out  of two                    SELYA, Circuit  Judge.                           ______________          consent  decrees that  together resolve  a majority  of the  cost          recovery  disputes associated  with  the cleanup  of a  hazardous          waste site  in Tyngsboro, Massachusetts (the  Site).  Appellants,          who are the principal  owners and operators of the  Site,1 strive          to  convince us  that the  district court misjudged  the relevant          goals of the Comprehensive Environmental Response, Compensation &          Liability Act  (CERCLA), 42 U.S.C.     9601-9675, and, therefore,          erred in  placing its  imprimatur  on the  decrees.   We are  not          persuaded.          I.  BACKGROUND          I.  BACKGROUND                    This  litigation dates  back to  1985, when  the United          States and the Commonwealth  of Massachusetts filed separate cost          recovery actions, soon consolidated, against appellants and other          alleged  owner-operators  (collectively,  "the junior  Georges"),          including  Charles  George, Jr.  and  James  George (children  of          Charles  and Dorothy George), and the  sons' firm, C & J Trucking          Co.  The  federal government's complaint alleged  claims under 42          U.S.C.    9604(a), 9604(b),  9604(e), 9607(a), 6928(a) & 6928(g).          The  Commonwealth's complaint  alleged claims  under 42  U.S.C.            9607(a) and Mass. Gen. Laws ch. 21E,   5.                    The  early  procedural  history   of  the  struggle  is          described  in a previous opinion of this court, see United States                                                          ___ _____________          v. Charles George Trucking Co., 823 F.2d 685 (1st Cir. 1987), and             ___________________________                                        ____________________               1Charles  George, his  wife Dorothy  George, Charles  George          Trucking, Inc., and Charles  George Land Reclamation Trust appear          as appellants.  We are not required to differentiate among them.                                          2          need  not be  revisited.    Thereafter,  acting   on  plaintiffs'          motions for partial summary judgment, the district court adjudged          appellants  to be jointly and  severally liable for  the costs of          cleanup.  However, the court left open the question of the junior          Georges'  liability due to  factual disputes anent  the degree of          control that they exercised over the Site.                    In June of 1989, plaintiffs amended their complaints to          add twenty-four  generator and transporter defendants.   In turn,          these  defendants  brought  third-party claims  for  contribution          against thirty-one  other putative  generators.  They  also filed          counterclaims   against   the   plaintiffs,  charging   negligent          regulation.   Appellants  emulated  this tactic,  serving similar          counterclaims.                    The district  court intervened to impose some structure          on  this welter of claims and cross-claims.  By a case management          order  (CMO)  dated April  12,  1990, Judge  Woodlock  deemed the          third-party  defendants  to have  asserted  all  available cross-          claims and counterclaims against other parties, but precluded the          plaintiffs from asserting claims directly against the third-party          defendants.  The judge supplemented the CMO in a subsequent bench          ruling through  which he limited development  of so-called trans-          shipment  issues, that is, issues  involving wastes hauled to the          Site after first being dumped elsewhere.                    By the fall of 1991, the dust had settled.  A new round          of summary judgment  motions had been  heard (most were  denied),          and trialworthy issues had been identified as to the liability of                                          3          all defendants, save only the appellants, and as to virtually all          aspects  of  the  remedial  phase.    Unresolved  questions  also          remained as to the counterclaims asserted against the plaintiffs.          The likelihood of lengthy litigation loomed large.                    Before  too  long,  settlement  negotiations  began  in          earnest.   After a  fitful start,  the  district court  appointed          Chief Judge Tauro  as a  settlement master.2   Numerous  meetings          among  the parties  yielded an  agreement  by the  plaintiffs, in          essence,  to extinguish  all  claims against  the generators  and          transporters (including the  third-party defendants) in  exchange          for a  global  "cash-out" payment  of approximately  $36,000,000.          The generators  and transporters were to  decide among themselves          how  to share the aggregate cost of  the settlement.  The federal          and  state  governments  agreed   to  contribute  an   additional          $3,103,712  as a  token of  their responsibility.   After further          negotiations,  again  held  under  Judge  Tauro's  auspices,  the          plaintiffs  and  the  junior  Georges  also  reached  an  accord,          proposing to  extinguish the latters'  liability in return  for a          payment  of  $3,100,000.    Though  appellants  participated   in          bargaining sessions  from time to time,  they eventually withdrew          from  the   negotiations.     The  claims  against   them  remain          unresolved.                                        ____________________               2Judge  Tauro is  the  Chief  Judge  of  the  United  States          District Court  for the  District of  Massachusetts.   We applaud          Judges  Tauro  and Woodlock  for their  creative approach  to the          resolution  of this  complex  case.   We  urge other  jurists  to          consider collaborative  efforts of this  sort when  circumstances          warrant.                                          4                    The  settling parties  prepared  two  proposed  consent          decrees.   They  presented  the first,  embodying the  settlement          reached by  the plaintiffs with the  generators and transporters,          to the district court  on December 17, 1992.   They presented the          second, embodying  the plaintiffs' suggested  settlement with the          junior Georges,  on July 27,  1993.  Both were  advertised in the          Federal  Register, see 28 C.F.R.    50.7, but  elicited no public                             ___          comment.                    At  a hearing  held  on May  24,  1993, Judge  Woodlock          applied  the  standards set  forth  in United  States  v. Cannons                                                 ______________     _______          Engineering Corp., 899 F.2d 79, 85 (1st Cir. 1990), and found the          _________________          generator/transporter decree to be reasonable, fair, and faithful          to CERCLA's  objectives.   Following a  separate hearing held  on          November 12, 1993, the  court made similar findings in  regard to          the  second decree.   Judge  Woodlock entered both  decrees under          Fed.  R. Civ. P. 54(b),  thus permitting appellants,  as the lone          objectors, to prosecute these appeals.          II.  STANDARD OF REVIEW          II.  STANDARD OF REVIEW                    Despite  appellants'  animadversions,  Cannons has  not                                                           _______          rusted.    It  teaches  that   CERCLA  consent  decrees  must  be          reasonable, faithful to the  statute's objectives, and fair (both          procedurally and substantively).   Cannons, 899 F.2d at 85.   The                                             _______          battle over whether a particular decree achieves these benchmarks          will usually be won or lost in the trial court.  By the time such          decrees arrive on the doorstep of the court  of appeals, they are          "encased in  a double layer  of swaddling."  Id.  at 84.   In the                                                       ___                                          5          first place, a trial court, without abdicating its responsibility          to  exercise  independent judgment,  must  defer  heavily to  the          parties'  agreement and the  EPA's expertise.   See id.   In this                                                          ___ ___          case, the inner layer of swaddling is especially thick because of          the role played by the distinguished special master in overseeing          negotiations.    The  second   basis  for  deference  is  equally          compelling.  Because an appellate court ordinarily cannot rival a          district  court's mastery of a factually complex case   a mastery          that is often, as in  this instance, acquired through painstaking          involvement  over many  years   the  district court's  views must          also be accorded considerable respect.                    Largely in  consequence of these  layers of  protective          swaddling, an appellate tribunal  may overturn a district court's          decision  to  approve or  reject the  entry  of a  CERCLA consent          decree  only for  manifest abuse  of discretion.   In  this case,          then, the decision  below stands  unless the  objectors can  show          that, in  buying into either  or both of  the decrees,  the lower          court made  a serious error of law or suffered a meaningful lapse          of judgment.  See id.                        ___ ___          III.  DISCUSSION          III.  DISCUSSION                    Appellants advance four sets of arguments in support of          their  claim  that the  district  court too  freely  accepted the          proposed  settlement.   We proceed  to examine  each of  the four          components that comprise this asseverational array.                                 A.  Reasonableness.                                 A.  Reasonableness.                                     ______________                    A CERCLA consent decree  is reasonable when it provides                                          6          for  an  efficacious cleanup,  and  at the  same  time adequately          compensates the  public for the cost of that cleanup.  See id. at                                                                 ___ ___          89-90.    Efficacy  is  not merely  a  function  of  how  close a          settlement comes  to meeting a scientifically  defined ideal, nor          is adequacy merely a function of  how close a settlement comes to          meeting  an estimate  of  projected costs.    These are,  rather,          pragmatic concepts,  and evaluating  them requires common  sense,          practical wisdom, and a dispassionate assessment of the attendant          circumstances.                    In this  case, appellants question the  efficacy of the          proposed  cleanup,  and  claim  that  they  are  entitled  to  an          evidentiary hearing on the matter.  In support of the first  half          of  this objection,  appellants  do little  more than  plagiarize          plaints from prior pleadings filed by other parties in opposition          to  plaintiffs' previous  motions for  partial summary  judgment;          they do  not attempt to explain  these points, fail to  set forth          supporting documents in  a record appendix, and rely  on rhetoric          to the exclusion of either record citations or scientific fact.                    We reject  appellants' objection on two  bases.  First,          it  is presented to us  in a slipshod  fashion, without developed          argumentation,  and is,  therefore, not  entitled  to substantive          consideration.  See  Ryan v. Royal  Ins. Co.,  916 F.2d 731,  734                          ___  ____    _______________          (1st Cir. 1990); United  States v. Zannino,  895 F.2d 1, 17  (1st                           ______________    _______          Cir.),  cert.   denied,  494  U.S.  1082  (1990).    Second,  our                  _____   ______          independent review of the  record leaves us confident  that Judge          Woodlock acted  well  within  the  realm  of  his  discretion  in                                          7          concluding that  the consent decrees incorporated  a suitable set          of remedies.                    The  second  half   of  the   objection  is   similarly          unavailing.   The district court did not err in declining to hold          an  evidentiary  hearing  to  delve  into  matters  of  efficacy.          Requiring hearings to review the reasonableness of CERCLA consent          decrees  as  a matter  of  course would  frustrate  the statutory          objective  of expeditious settlement.   See Cannons,  899 F.2d at                                                  ___ _______          94.  Consequently, requests for evidentiary hearings are, for the          most part, routinely  denied   and properly  so   at  the consent          decree stage in environmental cases.  See, e.g., United States v.                                                ___  ____  _____________          Metropolitan St. Louis Sewer Dist., 952 F.2d 1040, 1044 (8th Cir.          __________________________________          1992); State of Ariz.  v. Motorola, Inc., 139 F.R.D. 141, 148 (D.                 ______________     ______________          Ariz.  1991); United States v.  Bliss, 133 F.R.D.  559, 568 (E.D.                        _____________     _____          Mo. 1990); United States v. Rohm & Haas, 721 F. Supp. 666, 686-87                     _____________    ___________          (D.N.J. 1989) (collecting earlier cases).  While a hearing may be          necessary  or  desirable  in  special circumstances,  see,  e.g.,                                                                ___   ____          United  States v.  Town  of  Moreau,  751  F.  Supp.  1044,  1051          ______________     ________________          (N.D.N.Y. 1990), such cases are relatively rare.                    This case  invokes the general rule,  not the long-odds          exception to it.  The court had ample information before it, and,          even  without an  evidentiary hearing,  the parties  had  "a fair          opportunity to present relevant facts and arguments to the court,          and to counter the  opponent's submissions."  Aoude v.  Mobil Oil                                                        _____     _________          Corp., 862 F.2d 890, 894 (1st Cir. 1988).    Moreover, appellants          _____          have  pointed to nothing out of the ordinary that would suggest a                                          8          particularized  need for  an  evidentiary hearing.   Under  these          circumstances, we turn a deaf ear to appellants' lament.3                             B.  Fidelity to the Statute.                             B.  Fidelity to the Statute.                                 _______________________                    Among the overarching goals of CERCLA recognized by the          courts  are  "accountability, the  desirability  of an  unsullied          environment, and  promptness of  response activities."   Cannons,                                                                   _______          899  F.2d  at  91.    Appellants  insist  that  Judge  Woodlock's          endorsement of the consent decrees  undermined one of these goals            accountability   in two separate ways.                    Appellants' main argument is that the allocation method          embodied  in the  first  consent decree  failed  to specify  each          individual generator's and  transporter's degree of  culpability.          As a factual matter, appellants are correct;  the consent decrees          did no  more than assign  payment responsibilities to  classes of          potentially responsible  parties (PRPs), leaving the  question of          allocation  inter sese to the  class members themselves.   But we                      _____ ____          see no reason  to prohibit  such an approach.   Realistically,  a          government  agency,  in  the  midst  of  negotiations,  is  in no          position  to  put  so  fine  a  point  on  accountability.    We,          therefore,  endorse, in  general, EPA's  practice  of negotiating          with a representative group of PRPs and then permitting the group          members to divide the burden of the settlement among themselves.                    This  is,  as  one court  has  said,  a  "practical and                                        ____________________               3Appellants   also    disparage   the   adequacy    of   the          generator/transporter settlement from a financial standpoint.  As          we explain in Part III(B), infra, their criticism is unfounded.                                     _____                                          9          reasonable process for achieving  settlements."  United States v.                                                           _____________          Acton  Corp., 733 F.  Supp. 869, 873  (D.N.J. 1990).   It is also          ____________          faithful to CERCLA's goals.   After all, the ultimate  measure of          accountability  in an  environmental case  is the  extent  of the          overall  recovery, not the amount of money paid by any individual          defendant.                    Over  and   beyond  these  generalities,  there  is  an          especially  compelling   reason   for  accepting   a   class-wide          allocation  here.     Judge   Woodlock  supportably   found  that          appellants' records  were wholly inadequate.  A  lack of reliable          records renders it impossible, as a practical matter, for a court          to make  reasoned findings concerning  the relative contributions          of particular  generators or transporters to  the aggregate harm.          So  it is here.   And, moreover, because  the shortage of records          can  be directly  attributed  to appellants'  stewardship of  the          Site,  they can scarcely be  heard to complain  that the settling          parties  resorted to, and  the court then  approved, a class-wide          allocation.                    Appellants'  fallback position  is  predictable:   in a          refrain  evocative  of  one  of their  attacks  on  the  decrees'          reasonableness,  see supra note 3, they  insinuate that the first                           ___ _____          consent decree compromised the  goal of accountability by setting          too modest  a price tag on  the generator/transporter settlement.          Appellants  have an easily envisioned stake in this aspect of the          matter:     as  the   sole  non-settling  defendants,   they  are          potentially liable for  the full difference between the  costs of                                          10          cleanup  and the total amount paid by  the settling PRPs.  See 42                                                                     ___          U.S.C.     9613(f)(2), 9622(h)(4);  see also  United Technologies                                              ___ ____  ___________________          Corp. v.  Browning-Ferris Indus., Inc.,  ___ F.3d  ___, ___  (1st          _____     ____________________________          Cir. 1994) [No. 93-2253, slip op. at 17-18] (explaining interface          between  settlement and  liability  of PRPs  for contribution  in          CERCLA cases).   If, say,  the overall clean-up  costs eventually          total $70,000,000   the  highest of the differing  estimates that          have  been bandied about   appellants are staring down the barrel          of a $21,000,000 shortfall.  Appellants claim their aggregate net          worth amounts to only a tiny fraction of this exposure.   On this          basis, they contend that the plaintiffs sold out too cheaply, for          many of the settling parties have very deep pockets.                    Although we understand appellants' consternation, these          considerations are virtually irrelevant.  In the first place, the          district court  found that appellants are liable for all clean-up          costs    and that finding is not disputed  on appeal.  As is true          of  any assessment  of compensatory  damages, the  liable party's          ability to pay should not influence the amount of the assessment.          See  generally  22 Am.  Jur. 2d  Damages    952  (explaining that          ___  _________                   _______          evidence  of  a  defendant's  pecuniary  resources  is  generally          inadmissible  in   cases  where  only  compensatory  damages  are          recoverable);  Vasbinder v. Ambach, 926  F.2d 1333, 1344 (2d Cir.                         _________    ______          1991) (applying principle).                    To be sure, at  the next step relative wealth  may have          some  practical  bearing.     When  defendants  are  jointly  and          severally  liable, the prevailing party may choose to collect the                                          11          entire  indebtedness from one or  more of the  liable parties, to          the exclusion of others.  See, e.g., McDonald v. Centra, 118 B.R.                                    ___  ____  ________    ______          903,  914 (D. Md.  1990), aff'd, 946  F.2d 1059  (4th Cir. 1991),                                    _____          cert. denied, 112 S. Ct. 2325 (1992).  But when, as in this case,          _____ ______          liability  is  contested,  much  more  than  the  PRPs'  relative          affluence must be considered.                    With this in mind, the proper way to gauge the adequacy          of settlement amounts  to be paid by settling PRPs  is to compare          the  proportion  of  total projected  costs  to  be  paid by  the          settlors with  the proportion of liability  attributable to them,          and then to factor into the equation any reasonable discounts for          litigation  risks,  time  savings,  and  the  like  that  may  be          justified.                    Inspected through that lens,  the first consent  decree          looks entirely appropriate.   The district judge explicitly found          that   the  generators   and   transporters   collectively   were          responsible for fifty percent of the environmental damage.  Under          the  terms  of  the  negotiated settlement,  the  payment  to  be          tendered  by   the  generators   and  transporters  as   a  group          (approximately  $36,000,000)  represents more  than  half of  the          highest  estimate  of  aggregate  clean-up  costs  ($70,000,000).          Thus, the settlement is favorable to the government agencies even          before  allowances are  made for  appropriate discounts,  such as          litigation  risks,  the   benefit  derived   from  shelving   the                                          12          counterclaims, and  the desirability of expediting  the cleanup.4          Accordingly, appellants' accountability challenge lacks force.                                    C.  Fairness.                                    C.  Fairness.                                        ________                    In   a  somewhat   related  vein,   appellants  protest          vehemently  that Judge Woodlock  evaded his obligation  to make a          finding  on  substantive  fairness  by  failing  to  explain  the          settlements' allocation  of responsibility either within or among          the  various  classes  of  defendants.   In  support,  appellants          isolate a passage in Cannons in which we wrote:                               _______                    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.  . .  .   Whatever formula  or                    scheme EPA advances for measuring comparative                    fault  and  allocating  liability  should  be                    upheld  so  long  as  the agency  supplies  a                    plausible  explanation  for it,  welding some                    reasonable  linkage  between  the factors  it                    includes  in its  formula or  scheme and  the                    proportionate shares of the settling PRPs.                                        ____________________               4For what  it may  be worth, the  settlement compares  quite          favorably to the universe of CERCLA settlements, inasmuch as such          settlements often compensate the public  for only a tiny fraction          of the  overall expense.  See, e.g., In re Acushnet River, 712 F.                                    ___  ____  ____________________          Supp.  1019, 1031-32  (D.  Mass. 1989)  (approving settlement  by          primary owner/operator for  $2,000,000 in  contrast to  projected          total  clean-up cost of $34,000,000);  City of New  York v. Exxon                                                 _________________    _____          Corp.,  697  F.  Supp.  677, 693-94  (S.D.N.Y.  1988)  (approving          _____          settlement  by   seven  of  fifteen  defendants   for  less  than          $14,000,000  in  contrast to  projected  total  clean-up cost  of          $400,000,000).                                          13          Cannons, 899 F.2d at 87 (citations omitted).          _______                    Appellants' error is to read Cannons without regard for                                                 _______          its  facts.   Cases  resolve  particular  controversies, and  the          standards  they  articulate often  are  framed in  a  certain way          primarily to  rebut an argument raised  by a litigant.   Thus, in          Cannons, the  quoted passage rebuffed a challenge to a particular          _______          method of allocation.  It  cannot be ripped root and  branch from          that  context.     In   a  passage  conveniently   overlooked  by          appellants, Cannons  makes this very point;  the court recognized                      _______          that the standards it limned were not to be applied woodenly:                    [W]e are  quick  to concede  that  [fairness,                    reasonableness, and fidelity to  the statute]                    are all  mutable figures taking  on different                    forms   and   shapes  in   different  factual                    settings.    Yet,  the   concepts'  amorphous                    quality is no accident or  quirk of fate.  We                    believe that Congress  intended, first,  that                    the  judiciary take a  broad view of proposed                    settlements, leaving  highly technical issues                    and  relatively  petty   inequities  to   the                    discourse between parties;  and second,  that                    the  district courts  treat each case  on its                    own merits,  recognizing  the wide  range  of                    potential problems and possible solutions.          Id. at 85-86.          ___                    In the circumstances of  this case   a case  that bears          scant resemblance to Cannons   we do not believe that substantive                               _______          fairness  required a  more detailed    explanation of  either the          allocation or  the allocation method.   Three considerations pave          the way to this conclusion.                    First:  There is little need  for a court to police the                    First:                    _____          substantive fairness of a settlement as among settling parties of          a particular  class.   Sophisticated actors  know how to  protect                                          14          their own interests, and they are well equipped to evaluate risks          and rewards.  A  trial court can, therefore, usually  confine its          inquiry  to  the  substantive  fairness of  the  aggregate  class          contribution, or, put  another way, to the proposed allocation of          responsibility as between settling  and non-settling PRPs.  Here,          the trial court  performed this  task in exemplary  fashion.   It          would have served no useful  purpose to go further and  focus the          lens  of  inquiry   on  the  fairness  of  each   class  member's          contribution.                    Second:   It is impossible to explain  an allocation of                    Second:                    ______          liability in minute detail when, as now, the historical record is          incomplete.    And,  though  we  hold  district  courts  to  high          standards  of excellence,  we  do  not  expect  them  to  do  the          impossible.    Thus,  it  is  not  surprising  that  most  courts          recognizing an  obligation to make findings  on comparative fault          in the CERCLA context have framed the obligation in such a way as          to afford an exception for cases in which reliable information is          unavailable.  See id.  at 88 (explaining need for  flexibility in                        ___ ___          weighing  substantive fairness,  particularly when  the available          information  is "ambiguous, incomplete,  or inscrutable"); United                                                                     ______          States  v. Bell Petroleum Serv.,  21 Envtl. L.  Rep. 20,374, ____          ______     ____________________          [1990  U.S.  Dist.  LEXIS  14066  at  *8-*10]  (W.D.  Tex.  1990)          (rejecting the argument that, in order to deem a settlement fair,          a  court must find that  a party's settlement  corresponds to its          fair share of  liability, even  when "no method  of dividing  the          liability among  the [d]efendants" exists that  would not involve                                          15          "pure  speculation"); Rohm & Haas,  721 F. Supp.  at 689 (stating                                ___________          that whether  a settlement  bears a  reasonable relation  to some          plausible  range   of  estimates   of  comparative  fault   is  a          determination  that  must be  "based  on the  record");  see also                                                                   ___ ____          United  States v. Conservation Chem.  Co., 628 F.  Supp. 391, 402          ______________    _______________________          (W.D. Mo. 1985) (declaring that a court should spurn a settlement          which "arbitrarily  or unreasonably ignores the comparative fault          of  the parties, where there  is a reasonable  basis for allowing                           ________________________________________________          that comparison to be made") (emphasis supplied).          __________________________                    Such  an  exception  is  vitally  important  because  a          muddled  record is  the  norm in  most  CERCLA litigation.    See                                                                        ___          Cannons, 899  F.2d at 88  (citing authority);  see also  Lynnette          _______                                        ___ ____          Boomgaarden & Charles  Breer, Surveying the  Superfund Settlement                                        ___________________________________          Dilemma, 27  Land & Water L. Rev. 83, 121 (1992) ("In most CERCLA          _______          actions,  the   government  has  difficulty   accurately  proving          contribution  amounts.   Poor  records,  faulty  memories, and  a          desire to escape  liability all add to this  difficulty."); Barry          S. Neuman, No Way Out?   The Plight of the  Superfund Nonsettlor,                     _____________________________________________________          20 Envtl. L. Rep.  10,295, 10,299 (July 1990) ("In  virtually all          CERCLA  cases,  the  recollections  of  waste  haulers  and  site          owner/operators are  likely to be questionable, the documentation          linking some generators to a specific site subject to attack, and          the evidence generally incomplete.").                    We  conclude that so long  as the basis  for a sensible          class-wide approximation  is at hand    an approximation "roughly                                                                    _______          correlated with  some acceptable measure  of comparative  fault,"                                          16          Cannons,  899 F.2d  at 87 (emphasis  supplied)    difficulties in          _______          achieving  precise measurements  of  comparative  fault will  not          preclude a trial court from  entering a consent decree.  On  this          understanding,  we  uphold  the  district  court's   division  of          responsibility   between  owner/operators,   on  one   hand,  and          generators/transporters,  on the  other  hand.   On this  record,          splitting the  responsibility between  those two groups  does not          offend  our sense  of  fairness.5   Cf.,  e.g., 2  Kings  3:16-18                                              ___   ____          (describing original Solomonic solution).                    Third:   As we wrote in Cannons, fairness is "mutable .                    Third:                    _____                   _______          . . , taking  on different forms and shapes in  different factual          settings,"  id. at 85.   To that  extent, fairness is  an elusive                      ___          concept.  When substantive  fairness cannot be measured directly,          a court must devise alternate methods of testing for it.                    Here, Judge Woodlock noted  the lack of direct evidence          of  substantive  fairness but  ruled that  such evidence  was not          essential  because  substantive  fairness  flowed  as  a  natural          consequence from  procedural fairness.   Then, after  eliciting a          concession from  appellants' counsel that ample  basis existed to          allocate responsibility between different classes  of defendants,          the court  proceeded to make  a substantive  fairness finding  of          limited reach, determining that  the generators and transporters,          collectively,  were  responsible  for  one-half  of  the  overall                                        ____________________               5Appellants concentrate  their  fire on  the  first  consent          decree,  and  do  not  attack  the  substantive  fairness of  the          allocation approved vis-a-vis  the junior Georges.  At  any rate,          that allocation, too, seems supportable.                                          17          damage.                    We discern no error.   Although appellants take umbrage          at the idea that one type of fairness serves to assure the other,          providing  such  an  assurance   is  precisely  the  function  of          procedural fairness.   Cf., e.g., Sir  Henry Maine, Dissertations                                 ___  ____                    _____________          on Early  Law and Custom 389  (1886) ("Substantive law has  . . .          ________________________          the  look  of  being gradually  secreted  in  the interstices  of          procedure.").   There exist many  cases in  which the data  is so          fragmentary that a district court cannot be held to the letter of          the Cannons  substantive fairness  standard.   In  such cases,  a              _______          finding of procedural fairness together with other circumstantial          indicia of  fairness, may constitute  an acceptable  proxy.   See                                                                        ___          Neuman, supra, at 10,299 (postulating that incomplete records are                  _____          so common in  CERCLA litigation  that, no matter  how thorough  a          review the court undertakes,  the search for substantive fairness          typically collapses into a search for procedural fairness).                    This  is such a case.   By all accounts, the conduct of          the settlement negotiations, under the supervision of Chief Judge          Tauro,  was a textbook model   so  much so that appellants do not          press  any  objections  to  procedural fairness.    We  are  thus          reinforced  in our  conclusion  that the  lower court's  fairness          findings were both permissible and supportable.                        D.  The Scope of the Consent Decrees.                        D.  The Scope of the Consent Decrees.                            ________________________________                    Appellants' final  set of  arguments forces us  to step          outside  the range of Cannons.  Appellants claim that the consent                                _______          decrees  are overbroad  both because  they addressed  claims that                                          18          were  not pleaded and because they addressed claims that had been          sidetracked by the CMO.                    1.    The  Standard.     In  its  definitive  statement                    1.    The  Standard.                          _____________          concerning  the  scope  of  consent decrees,  the  Supreme  Court          explained that a court cannot lend its imprimatur to a settlement          unless:                    (1)   it  "spring[s]  from  and  serve[s]  to                    resolve a dispute  within the court's subject                    matter jurisdiction"; (2) it  `come[s] within                    the  general scope  of the  case made  by the                    pleadings'; and (3)  furthers the  objectives                    upon which the complaint was based.          Local  No. 93, Int'l Ass'n of Firefighters v. Cleveland, 478 U.S.          __________________________________________    _________          501, 525-26 (1986); (citations  omitted); accord Conservation Law                                                    ______ ________________          Found. v.  Franklin, 989 F.2d 54,  59 (1st Cir. 1993).   We apply          ______     ________          this  standard to  the consent  decrees at  issue as  a means  of          testing appellants' twin objections.                    2.   Natural  Resource  Damages.   Appellants' complain                    2.   Natural  Resource  Damages.                         __________________________          that the decrees resolved potential claims for damages to natural          resources  that were  never  pleaded and,  accordingly, were  not          properly  before the court.   Even if  we assume for  the sake of          argument  that these claims would  not have surfaced  at a trial,          appellants' objection is fruitless.                    The objection  calls into  question only the  second of          the Firefighters requirements   and that requirement is satisfied              ____________          in  this instance.   Indeed, the  natural resource  damage claims          discussed in  the decrees  exemplify the  type of  related claims          envisioned by the Justices  as coming within the authority  of an          approving  court.  They are claims that, though not expressly set                                          19          out in the pleadings, fall within their general scope.6                    3.   Claims Precluded Under the  Case Management Order.                    3.   Claims Precluded Under the  Case Management Order.                         _________________________________________________          Appellants' next  complain that  the consent decrees  disposed of          claims  that could not have been litigated under the terms of the          CMO, namely,  potential claims  by the plaintiffs  against third-          party  defendants  and   potential  claims  anent  trans-shipment          issues.   Insofar as  we  can tell,  it is  a  question of  first          impression whether a  consent decree may resolve claims  that the          parties were precluded from litigating under the court's own case          management orders.  On reflection, we believe that question  must          be answered affirmatively.                    CMOs  are  designed to  serve  a  variety of  pragmatic          objectives.   These include not  only expediting and focusing the          litigation,  see Fed. R. Civ.  P. 16(a)(1)-(4), but  also, as the                       ___          current version of the  rule recognizes, facilitating settlement,          see Fed. R.  Civ. P. 16(a)(5).7   We think  it follows that  case          ___          management   is  an  area   in  which  the   district  court  has          "considerable discretion."  Geremia v. First Nat'l Bank, 653 F.2d                                      _______    ________________                                        ____________________               6Appellants'  contention  to  the  contrary   relies  almost          exclusively  on the opinion in  City of New  York v. Exxon Corp.,                                          _________________    ___________          697   F.  Supp.  677  (S.D.N.Y.  1988).    But  Exxon  is  easily                                                          _____          distinguished.   There, the  district court refused  to approve a          settlement involving a  non-party.  See  id. at  687.  The  court                                              ___  ___          reasoned that  it had no  power to resolve a  dispute outside its          subject  matter jurisdiction.   Id. at 687-88.   The case  at bar                                          ___          poses   very   different  problems,   bereft   of  jurisdictional          overtones.               7We note that, in practice, these two sets of goals often go          hand in  hand.  To hold  settling parties to the  strictures of a          CMO, come what may, would place the two goals in tension with one          another.                                          20          1, 5 (1st Cir.  1981).  Although  a CMO will ordinarily  "control          the  subsequent course of the action," Fed.  R. Civ. P. 16(e), it          may  be modified  by  subsequent order  at  the district  court's          pleasure, see Ramirez Pomales v. Becton Dickinson & Co., 839 F.2d                    ___ _______________    ______________________          1, 3 (1st  Cir. 1988), or, in the case of a final CMO, to prevent          manifest   injustice,  see   Fed.  R.   Civ.  P.  16(e).     More                                 ___          specifically, the trial court has very broad discretion to modify          a preexisting case management order to facilitate settlements, at          least  in  the absence  of unfair  prejudice.   See  generally 6A                                                          ___  _________          Charles  A. Wright  et  al.,  Federal  Practice and  Procedure                                           ________________________________          1525.1,  at 253-54 (1990)  (discussing district court's authority          to  encourage  settlements).    We  see  no  unfair prejudice  to          appellants from the court's wise exercise of its discretion here.                    Once  we  have reached  this  plateau,  the rest  flows          naturally.  It is evident from the very nature of case management          orders that they  are not  jurisdictional in effect.   Thus,  the          first Firefighters requirement  is fulfilled.  And as  we explain                ____________          below, the  second and  third Firefighters requirements  also are                                        ____________          met.                    That the  third-party  and trans-shipment  claims  come          within  the  general  scope  of  the  pleadings  and advance  the          objectives  of the  plaintiffs'  complaints  cannot be  gainsaid.          CERCLA  cost  recovery  actions  are  initiated  in the  hope  of          resolving  all  issues revolving  around  a  particular Superfund          site, and frequently, in  the hope that resolution will  take the          form  of a global settlement.   This is  consistent both with the                                          21          statutory design  and  the common  good.   In  the  words of  the          district court:                    It would  have been a foolish  or odd consent                    decree that did not incorporate within it all                    of  the potential claims  that can  and could                    have arisen  out of th[is] litigation.  . . .                    [I]t is  altogether  proper, indeed,  in  the                    larger  public  interest for  [the  court] to                    leave no loose threads.                    Moreover, the  Supreme Court has made  clear that there          is  no per se prohibition against consent decrees that exceed the                 ___ __          possible bounds of a decision issued directly by the trial court.          Because a consent  decree is  animated not only  by the  parties'          legal claims  but also by  the parties' consent, a  court is "not          necessarily barred from entering  a consent decree merely because          the  decree provides  broader relief  than the  court could  have          awarded after trial."  Firefighters, 478 U.S. at 525.   Viewed in                                 ____________          this light, we do not think that the scope of the consent decrees          exceeded the bounds of the trial court's discretion.                    To  recapitulate,  then,  a CERCLA  consent  decree may          (and,  in many cases, should)  sweep more broadly  than would the          court's judgment in the event that the litigation culminated in a          full-dress  trial.  Because this is true, and because the consent          decrees  pass  Firefighters muster  in  all  respects, we  reject                         ____________          appellants' contention that the decrees are overbroad.          IV.  CONCLUSION          IV.  CONCLUSION                    We  need  go  no further.    Finding,  as  we do,  that          appellants' asseverational array contains  more cry than wool, we          hold  that the  district court  acted lawfully  in  approving the                                          22          consent decrees at issue here.          Affirmed.          Affirmed.          ________                                          23
