City of Bangor v. Citizens Communications Co.

United States Court of Appeals
For the First Circuit

Nos. 07-2193, 07-2255, 07-2759, 07-2777

CITY OF BANGOR,

Plaintiff, Appellee,

v.

CITIZENS COMMUNICATIONS COMPANY,

Defendant/Third-Party Plaintiff, Appellee,

v.

UGI UTILITIES, INC.; CENTERPOINT ENERGY RESOURCES CORP., ET AL.,

Third-Party Defendants,

BARRETT PAVING MATERIALS INC.; HONEYWELL INTERNATIONAL INC.; BEAZER
EAST, INC.; DEAD RIVER COMPANY,

Third-Party Defendants, Appellants,

v.

SOCIÉTÉ ROUTIÈRE COLAS, S.A.,

Fourth-Party Defendant, Appellant,

ROBINSON SPEIRS, JR.; JULIE ANN MACMANNIS; NANCY S. DAWSON;
ELIZABETH H. SPEIRS; MARY S. PRICE; ROBINSON SPEIRS,

Fourth-Party Defendants, Appellants.

STATE OF MAINE; MAINE DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Appellees.
 APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Lynch, Chief Judge,
Merritt,* Senior Circuit Judge,
and Howard, Circuit Judge.

Gregory A. Bibler with whom Paul E. Nemser, Francis G.
Kelleher, Christophe G. Courchesne, and Goodwin Procter LLP were on
brief for Honeywell International Inc.
Robert S. Frank with whom Harvey & Frank was on brief for Dead
River Company.
William B. Devoe with whom Eaton Peabody, W. Scott Laseter,
and Kazmarkek Geiger & Laseter LLP were on brief for City of
Bangor.
John S. Hahn with whom Jay C. Johnson, Mayer Brown LLP, Martha
C. Gaythwaite, and Friedman, Gaythwaite, Wolf & Leavitt were on
brief for Citizens Communication Company.
Mary M. Sauer, Assistant Attorney General, with whom Paul
Stern, Deputy Attorney General, and G. Steven Rowe, Attorney
General, were on brief for State of Maine and Maine Department of
Environmental Protection.
John P. McVeigh, David B. Van Slyke, and Preti Flaherty
Beliveau & Pachios LLP were on brief for Barrett Paving Materials,
Inc.
Michael Kaplan and Preti Flaherty Beliveau & Pachios LLP were
on brief for Société Routière Colas, S.A.
Jeffrey A. Thaler and Bernstein, Shur, Sawyer & Nelson were on
brief for Beazer East, Inc.
Samuel W. Lanham, Jr. and Lanham & Blackwell were on brief for
Robinson Speirs, Elizabeth H. Speirs, Mary S. Price, Nancy S.
Dawson, Julie Ann MacMinnis, and Robinson Speirs, Jr.

July 9, 2008

*
Of the Sixth Circuit, sitting by designation.

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 LYNCH, Chief Judge. This case concerns responsibility for

the cleanup of the contamination of the bed of Penobscot River in

Bangor, Maine, known as Dunnett's Cove, under the federal

Comprehensive Environmental Response Compensation and Liability Act

("CERCLA"), 42 U.S.C. § 9601 et seq.

Specifically, we are being asked to overturn the district

court's approval, after nearly five years of litigation, of a

Consent Decree which allocates certain responsibilities among

defendant Citizens Communications Company, the plaintiff City of

Bangor, and the intervenor State of Maine (including the Maine

Department of Environmental Protection ("DEP")). City of Bangor v.

Citizens Commc'ns Co. (Bangor II), No. 02-183, 2007 WL 1557426 (D.

Me. May 25, 2007). The appellants are non-settling third and

fourth parties who are said to be potentially responsible parties.

We are also being asked to order the district court, which has not

ruled on the question of the non-settling parties' liability, to

enter judgment in favor of the appellants on a particular theory.

The United States, through the Environmental Protection

Agency, is not and has never been a party in this action, unlike in

most CERCLA actions. We consider whether the absence of the United

States affects the standard of review of the Consent Decree and

conclude that it does. We affirm the Consent Decree and other

orders being challenged.

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 I.

A fairly extensive discussion of the background of the

case is required.

A. Original Complaint

The City of Bangor initially filed a cost recovery suit

in 2002 under the private plaintiff provisions of CERCLA, 42 U.S.C.

§§ 9607, 9613, against Citizens Communications Company. Citizens

filed a counterclaim against Bangor, claiming that the City was

responsible for some of the contamination, and filed complaints

against numerous third parties.

The City's complaint alleged Citizens is a potentially

responsible party ("PRP") for the contamination from the

manufactured gas plant ("MGP" or "Site"), which operated in Bangor

from approximately 1851 to 1963. In 1948 Citizens merged with the

Bangor Gas Company, then the owner of the MGP, and succeeded to and

assumed all liability relating to the MGP. Citizens sold the Site

to the Maine Utility Gas Company in April 1963. In 1978, the City

of Bangor took the property through eminent domain. The complaint

alleged that the City had expended over $1.125 million in

investigative and cleanup costs and had suffered from the

property's diminished value.

The complaint alleged the MGP discharged tar, tar-laden

wastewater, and other byproducts into the Penobscot River through

a stone sewer that ran beneath the Site and emptied into the river,

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and that various construction activities at the Site contributed to

the contamination.

The complaint alleged that those hazardous waste

discharges created a tar slick on the bottom of the Penobscot River

that begins at the outfall of the stone sewer and extends at least

1500 feet downstream. As a result, globules from the tar slick

periodically "bubble to the surface and coat boats, docks, bridges

and the shoreline in the vicinity . . . . These and other releases

from the tar slick emit hazardous and toxic chemicals that are

potentially harmful to humans and numerous aquatic species."

Hazardous wastes from the Site allegedly have also contaminated the

soil beneath an adjacent playground and other nearby properties.

The complaint sought cost recovery under CERCLA section

107, 42 U.S.C. § 9607, and a declaration that Citizens was jointly

and severally liable for all future cleanup costs. In the

alternative, the City sought a declaration under CERCLA section

113, id. § 9613, that Citizens would be responsible for an

equitable share of all future cleanup costs. The City also sought

relief under Maine statutory and common law.1

1
The City claimed that the Site constituted a public and
private nuisance under the State's nuisance statute, Me. Rev. Stat.
Ann. tit. 17, § 2701, and common law, and it sought injunctions
under both the statute, id. § 2702, and common law. The City also
asserted claims for strict liability for ultrahazardous or
abnormally dangerous activity and negligence, and it sought
declaratory judgment on its common law and statutory nuisance
claims and punitive damages of at least $50 million.

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B. Early Proceedings and Complaints Against Third and Fourth
Parties

Citizens filed an answer on December 26, 2002, arguing,

inter alia, that because the City is a responsible party, it cannot

maintain any claims against Citizens under CERCLA section 107.

Citizens also filed a counterclaim, alleging that the City was

responsible for contamination of Penobscot River and qualified as

a "responsible person" under CERCLA, id. § 9607(a), and so was

responsible for an equitable share of response costs under CERCLA,

id. § 9613(f)(1).

Bangor filed an Amended Complaint on April 17, 2003 that

added the State of Maine to the case caption as a purported "party-

in-interest" and asserted additional claims against Citizens under

a provision of the federal Resource Conservation and Recovery Act

("RCRA"), id. § 6972(a)(1)(B).2 Citizens opposed adding the State

as a party, arguing that this "method of adding a new party was

completely improper" and that the State's inclusion "would merely

add confusion to the proceedings." The State sent a letter to the

court saying it had two interests in the litigation: from its

2
RCRA governs the "treatment, storage, and disposal of
solid and hazardous waste." Meghrig v. KFC W., Inc., 516 U.S. 479,
483 (1996). RCRA differs from CERCLA because its primary purpose
is not to promote the cleanup of toxic waste sites or to compensate
those involved in the remediation of such sites, but rather "to
reduce the generation of hazardous waste and to ensure the proper
treatment, storage, and disposal of that waste which is nonetheless
generated." Id. The provisions of RCRA are not at issue in this
appeal.

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regulatory authority over uncontrolled hazardous waste sites, and

from the State's property interest in the river bed on which a

portion of the tar plume rests. The State indicated that it

believed its status "is correctly denominated as a 'party-in-

interest.'"

On August 6, 2003, the district court granted Citizens's

Motion To Strike or Drop the State of Maine as a Party. The court

rejected Bangor's suggestion that the court use its equitable

powers to allow the State to participate as a "party-in-interest,"

holding that Bangor had not demonstrated any legal authority for

its doing so. The court suggested that if the State wanted to

participate, it should either intervene under Fed. R. Civ. P. 24 or

request to be included as an amicus curiae. Alternatively, the

court noted that the plaintiff, Bangor, could move to join the

State under Fed. R. Civ. P. 20. Bangor did not do so.

In the interim, on April 30, 2003, Citizens filed third-

party complaints, under Fed. R. Civ. P. 14, 19, and 20, against

Barrett Paving Materials, Inc.; the U.S. Army Corps of Engineers;

Guilford Transportation Industries, Inc.; Honeywell International

Inc.; S.E. MacMillan Company, Inc.; Dead River Company;

Northwestern Growth Corporation; UGI Utilities, Inc.; North

American Utility Construction Corp.; Beazer East, Inc.; and

Centerpoint Energy Resources Corp., seeking contribution and/or

indemnity for any environmental cleanup costs for which it might be

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held liable. On August 26, 2003, Citizens filed an additional

third-party complaint against Maine Central Railroad Company.

Various fourth parties were added.3 Bangor filed a Second Amended

Complaint on October 22, 2003, which did not seek to add any

additional parties.

C. Motions for Summary Judgment

On October 24, 2003, Citizens moved for partial summary

judgment under CERCLA section 107 on the grounds that the City was

a responsible person and therefore unable to bring a joint

liability claim under this provision of CERCLA.

On November 18, 2003, the U.S. Army Corps of Engineers

filed a motion for partial judgment on the pleadings, arguing that

Citizens had no claim for contribution against it because Citizens

was potentially liable only for its equitable share, and parties

facing only equitable liability cannot bring contribution claims.

3
On October 2, 2003, Dead River Company filed a fourth-
party complaint against Robinson Speirs, Elizabeth H. Speirs, Mary
S. Price, Nancy S. Dawson, Julie Ann MacMannis, and Robinson
Speirs, Jr., alleging that when these defendants sold Bacon &
Robinson Co. to Dead River Company in 1976, they covenanted and
warranted that they were responsible for any undisclosed
obligations of Bacon & Robinson Company.
On November 10, 2003, third party Honeywell International
Inc. filed a fourth-party complaint against Société Routière Colas,
S.A., asserting that Colas had agreed to indemnify Honeywell's
predecessor against environmental claims asserted after November
28, 1978.
Third and fourth parties Barrett Paving, Honeywell
International, Beazer East, Dead River Company, Colas, and the
Speirs parties collectively refer to themselves as "non-MGP"
parties because they had no connection to the operation of the MGP.

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 On March 11, 2004, the magistrate judge recommended

granting Citizens's motion for partial summary judgment on the

ground that Bangor was precluded from obtaining a full recovery

under CERCLA section 107 because it was a PRP. City of Bangor v.

Citizens Commc'ns Co., No. 02-183, 2004 WL 483201, at *1 (D. Me.

Mar. 11, 2004).4

The magistrate judge also recommended granting the Army

Corps's motion on the grounds that Citizens was potentially liable

to Bangor only to the extent of its equitable share in the City's

cleanup costs and therefore had "no legal basis to seek

contribution from third-parties." City of Bangor v. Citizens

Commc'ns Co., No. 02-183, 2004 WL 483202, at *1 (D. Me. Mar. 11,

2004). The district court subsequently adopted these

recommendations. City of Bangor v. Citizens Commc'ns Co., No. 02-

183, 2004 WL 1572627, at *1 (D. Me. May 7, 2004).

D. Stay and Bifurcation of Third-party Claims

We spend some time on this matter because it directly

affects one of the appellants' key objections to the court's later

actions.

On March 30, 2004, the magistrate judge issued an order,

embodying an agreement by the parties, staying all discovery

deadlines relating to the third- and fourth-party actions,

4
This is no longer the law after United States v. Atlantic
Research Corp., 127 S. Ct. 2331 (2007), which held that PRPs can
recover incurred cleanup costs under section 107. Id. at 2236-38.

-9-
including deadlines to make expert witness designations. On May

14, 2004, the magistrate judge ordered that the stay of discovery

would remain in effect as to third-party claims, and also noted

that "[t]he parties are not yet sure if one or more of them might

be opposed to bifurcation, and no final decision has been made in

that regard."

On July 6, 2004, the magistrate judge ruled on a second

summary judgment motion filed by Citizens, in which Citizens sought

judgment with respect to all remaining counts in Bangor's Second

Amended Complaint. City of Bangor v. Citizens Commc'ns Co., No.

02-183, 2004 WL 1572612 (D. Me. July 6, 2004). The magistrate

judge recommended granting the motion with respect to state law

claims involving private nuisance, strict liability for

ultrahazardous activity, and punitive damages, and denying the

motion with respect to all other claims. Id. at *11.

The magistrate judge's opinion recommended bifurcation:

[A]t the conclusion of the hearing counsel for [a
third-party defendant] expressed concern whether
the court envisioned that litigation between
Citizens and the City would be binding against
third-party defendants, who were essentially
sidelined from this litigation in connection with
the prior entry of judgment against Citizens's
third-party CERCLA action against the Army Corps of
Engineers and my order, entered by consent, staying
discovery of third party experts. . . . I would
recommend at this juncture that the court bifurcate
this case and proceed solely on the action between
the City and Citizens.

Id. at *10.

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 The recommendation was adopted in whole by the district

court, without objection. City of Bangor v. Citizens Commc'ns Co.,

No. 02-183, 2004 WL 2823211, at *1 (D. Me. Oct. 14, 2004).

Discovery remained stayed as to third parties pending resolution of

the initial phase of the trial.

In a joint memorandum requested by the court and filed on

November 2, 2004, the parties agreed that the case would proceed in

three phases, not two. Phase One would be a trial between Bangor

and Citizens regarding Bangor's liability claims, Citizens's

affirmative defenses and counterclaims, and Citizens's equitable

share of responsibility. In Phase Two, the court would determine

"the appropriate remedy, if any, to address tar in the Penobscot

River." If a third phase were necessary, it would consist of a

trial to determine the third parties' liability to Citizens.

In this memorandum, Citizens also took the position that

findings and determinations in the first two phases of the case

should be binding in the third phase involving the third parties.

On February 17, 2005, the court declined to address any issues

involving the third parties, noting that "[t]his matter is

scheduled to proceed to trial in May on a bifurcated basis, without

participation by third parties. At best, the action remaining

against any third party is purely hypothetical in any event, given

the court's prior rulings. Therefore [Citizens's] motion all but

asks for an advisory order binding those potential third-party

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defendants in an action that cannot even be contemplated under the

current state of the record."

E. Phase One Trial and Findings

A twelve-day Phase One bench trial was held in September

2005. The third and fourth parties did not participate. On June

27, 2006, the district court issued its Findings of Fact and

Conclusions of Law ("Phase One Findings and Conclusions"). City of

Bangor v. Citizens Commc'ns Co. (Bangor I), 437 F. Supp. 2d 180 (D.

Me. 2006). See Fed. R. Civ. P. 52(a).

The district court made the following findings of fact

and conclusions of law. Bangor had incurred approximately

$1,000,000 in costs during the course of investigating the tar

contamination in Dunnett's Cove. Bangor I, 437 F. Supp. 2d at 196.

The primary source of the hazardous levels of polycyclic aromatic

hydrocarbons ("PAHs") in Dunnett's Cove is tar. Id. at 200. "[I]t

is more likely than not that during most, if not all, of its

operating life, the Bangor MGP discharged tar-laden wastewater into

Dunnett's Cove via the Old Stone Sewer . . . [which] contributed to

the PAH contamination in Dunnett's Cove." Id. at 201. The

operations of a nearby railyard, which occurred between 1854 and

1986, are more likely than not a source of the contamination in

Dunnett's Cove, and "[t]he City's use of and construction on the

Railyard property since 1996 has likely contributed to the movement

of PAH contamination from the Railyard property into Dunnett's

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Cove." Id. at 204. "[O]ther discharges via the Old Stone Sewer,

besides those from the Bangor MGP and the Railyard . . .,

contributed to the tar contamination and elevated PAHs that are now

found in Dunnett's Cove." Id. at 206. However, these discharges

are "likely consistent with what the experts referred to as 'urban

background' and, as such, these discharges more likely than not

account for only a relatively small portion of the tar and elevated

PAHs that will inevitably be addressed in any cleanup of the site."

Id.

The court concluded that Citizens was liable under RCRA

as a past generator of the solid waste now found in the intertidal

zone and the northern portion of Dunnett's Cove. Id. at 211. As

a result, the court noted that it could enter an injunction

requiring Citizens to abate any imminent and substantial

endangerment that exists in Dunnett's Cove, and also could award

Bangor any appropriate costs of litigation, including attorneys'

fees and expert witness fees. Id.

The court determined that Bangor was also liable under

RCRA because it "contributed to the past handling and disposal of

solid waste" in the intertidal zone and the northern portion of

Dunnett's Cove. Id. As a result, the court noted that it could

enter an injunction requiring Bangor to abate any imminent and

substantial endangerment and award Citizens appropriate costs of

litigation. Id. The court concluded that under RCRA, Citizens and

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Bangor were jointly and severally liable to carry out the

directives of a mandatory injunction that would abate the

substantial and imminent endangerment presented by tar

contamination in Dunnett's Cove. Id. at 219.

The court further concluded that the PAHs in Dunnett's

Cove qualify as "hazardous substances" under CERCLA. Id. at 211.

Because Bangor owns an intertidal zone portion of the Dunnett's

Cove facility and because it arranged for the disposal of tar into

Dunnett's Cove, the court found it liable under CERCLA. Id.

Because Citizens succeeded to the liability of the Bangor Gas Light

Company and Bangor Gas Works, the court also found it liable under

CERCLA. See id. at 212.

Having considered all of the evidence at trial and the

factors set out in In re Hemingway Transport, Inc., 993 F.2d 915,

921 n.4 (1st Cir. 1993), the court concluded, within the

limitations of the Phase One inquiry, that Citizens's share of

responsibility under CERCLA should be sixty percent and assigned

the remaining equitable share of forty percent to Bangor. Bangor

I, 437 F. Supp. 2d at 212. This ratio was to apply to previously

incurred as well as to future response costs. Id. at 213. The

court explained that

[t]here is a distinction between resolving the
question of whether the Bangor MGP is a source of
the contamination in question and the more general
inquiry of determining all of the sources for PAH
contamination in Dunnett's Cove. In the context of
this first phase trial, it was never contemplated

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 that the parties or the Court would attempt to
definitively answer the latter, more general
inquiry, although it was inevitable that the Court
would make some findings that address this
question. Despite these related findings, further
discussion of the other sources is unnecessary and
inappropriate.

Id. at 214.

The court made clear that its finding that there were two

parties responsible for the contamination was limited and only

"[i]n the context of this first phase trial." Id. The court noted

that if it "were ultimately presented with each and every entity

that could be responsible for some amount of tar and/or PAHs now

found in the Cove, the complicated process of weeding out multiple

'de minimis' polluters and then making an equitable allocation

among all remaining parties would involve a complicated trial

involving many months, if not years." Id. at 224.

The court further explained that "[a] relatively small

portion of the City's share, five percent or less, reflects the

City's role in contributing to the Bangor MGP discharge . . . .

Another slightly greater portion . . . reflects the equitable share

that might be assigned to other potentially responsible parties

that the City has chosen not to pursue and for whom the City does

not serve (and has not served) as a subsequent owner of the

property. Finally, the bulk of the City's forty percent share

reflects its role as current owner of other properties that have

contributed to the contamination." Id. at 225. The court noted

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that although previous property owners might have played a more

significant role in causing the contamination, "the City has chosen

not to pursue these previous owners. Even if the City had pursued

these previous owners, the City would likely still be assigned some

equitable share for these properties . . . both because of its

current role as owner and because of its subsequent use and

construction on these properties." Id. at 225-26.

The court also discussed the possibility of assigning an

equitable share to each liable parent corporation of Citizens which

was responsible for operations of the MGP prior to November 1948.

See id. at 226-27. In doing so, it made clear that "although the

Court is now opening the door of potential third-party liability to

Citizens, it is doing so on a limited basis. The Court has not

assigned to Citizens any 'orphan shares' . . . . Thus, the only

third parties that might be liable to Citizens are those that are

proven to share in the responsibility of the operation of the

Bangor MGP some time prior to 1963." Id.

Significantly, the court stated that "no final judgment

will be entered as [of] this time," and instructed the parties to

determine the best way to move forward while the action was stayed.

Id. at 227.

F. Stay and Settlement Discussions Among Phase One Parties

During the stay that followed, Bangor and Citizens

informed the court that they were "actively engaged in efforts to

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craft a remedy for the environmental problem at issue in this

litigation" that would comport with the court's Findings and

Conclusions and also be acceptable to Maine, with whom they had

been holding meetings. The parties also reported that they had

"held multiple meetings and conference calls to discuss the

possibilities of settling all issues between them which, if

successful, would leave only claims against the Third Parties for

possible resolution by the Court in a Phase III trial." They noted

that no third parties had participated in these discussions. The

court continued to extend the stay throughout the end of 2006 in

order to allow the participating parties to continue negotiations

and attempt to "reach[] an efficient global resolution of this

matter."

Faced with the prospect that the Phase One parties and

the State might settle, the third- and fourth-party defendants

became active. On December 18, 2006, third-party defendants

Barrett Paving and Honeywell International and fourth-party

defendant Colas filed a motion for judgment, arguing that the

court's Findings and Conclusions limited Citizens's responsibility

to its equitable share and there were therefore no remaining claims

against them since "Citizens has made claim against Barrett and

Honeywell only for such share of liability as the Court may assign

to Citizens that exceeds its equitable share." Citizens filed an

opposition, arguing that the motion for judgment was improper

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because "all proceedings concerning the moving parties have been

stayed and bifurcated from the active dispute between the City and

Citizens, and . . . the dispute between the City and Citizens has

itself been stayed."

On January 18, 2007, the court extended the stay until

February 16. On February 16, Bangor and Citizens submitted a joint

status report indicating that they had executed a Settlement

Agreement and were in the process of finalizing a Consent Decree

with the State and the State DEP. The report noted that Bangor and

Citizens had "met and conferred with DEP and representatives of the

Attorney General's office on multiple occasions, and have exchanged

multiple drafts of the Consent Decree." It indicated that the

State had no objection to the "basic terms on which Citizens had

agreed to settle," and the main issues still to be resolved "center

around the specific procedures under which the City ultimately will

finalize the selection of the remedy with DEP at some later date."

On February 23, Citizens and Bangor submitted a joint

status report proposing a schedule for the Phase Three, or third-

party, liability determinations. They noted that the

determinations to be made included whether each of the third-party

defendants qualified as a liable party under CERCLA section 107(a)

and what responsibility the third parties should bear under the

principles of equitable allocations.

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 On March 5, 2007, third-party defendants Maine Central

Railroad Company and Guilford Transportation Industries filed a

motion to dismiss, and third-party defendants Dead River Company

and Beazer East filed separate motions for judgment on the

pleadings. Citizens objected to all of these motions, noting that

"the Third Party Motions rely heavily on the Court's initial

Findings of Fact and Conclusions of Law from the first phase trial.

But those findings have not been entered as a final judgment, and

cannot properly serve as a basis for the Third Party Motions.

Moreover, the Court's findings actually point toward, not away

from, the third parties' liability . . . ."

G. Involvement of and Intervention by the State

The State did not respond until April 12, 2007 to the

district court's August 2003 suggestion that, if it wanted to

participate in the case, it ought to request to intervene or to be

included as an amicus curiae. Maine in April 2007 filed a motion

to intervene. See Fed. R. Civ. P. 24.

The State's motion described the State's involvement in

the case as follows: Starting in 2001, the DEP oversaw a remedial

investigation of the Site. On March 3, 2004, the DEP issued an

Uncontrolled Site Designation stating that the tar deposit in

Dunnett's Cove and/or the PAHs in this deposit are hazardous

substances and the Site is an "uncontrolled hazardous substance

site" as defined in the Maine Uncontrolled Sites Law. In 2004,

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Bangor and Citizens jointly engaged a consulting firm, which on

March 15, 2004, submitted a Feasibility Study Report to the DEP

that recommended several remedies for the Site. On August 17,

2005, the DEP issued a letter accepting these proposed remedies and

a Decision Document that identified its selected remedies.

Following the district court's issuance of the Phase One Findings

and Conclusions in June 2006, the DEP renewed its discussions with

Bangor and Citizens regarding remedies for the Site. The parties

did not reach an agreement on remedies but did reach an agreement

regarding the process by which remedies would be proposed and

evaluated, and this agreement was contained in a Consent Decree the

parties would submit to the court separately.

The State argued that it could intervene as of right5

because its interests would be "directly and irrevocably affected"

by the court's decision regarding the remedy phase of the

underlying lawsuit between Bangor and Citizens, both because it

owns the submerged lands underlying the Penobscot River and because

it has the power and responsibility to oversee the cleanup of

hazardous waste sites. The State argued that its interests could

not be adequately represented by either Bangor or Citizens because

"these parties are obligated to pay for the remedial actions and

therefore have a potential conflict of interest regarding the

5
Alternatively, it sought permissive intervention.

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selection of . . . remedies," and also because the State's police

power cannot be delegated to a third party.

Various third and fourth parties opposed the State's

motion to intervene, arguing that (a) it was untimely because it

came four years after the State declined specific invitations to

join the proceeding as a party; (b) the State had failed to file a

complaint with its motion to intervene as required by Fed. R. Civ.

P. 24(c); and (c) "the State's intervention raises the very real

specter that new claims will be filed, additional parties joined,

and many more years of discovery and other pretrial proceedings

will be commenced." The State responded that it could not have

filed a motion for intervention before the agreement embodied in

the Consent Decree was reached, and that the motion and proposed

Decree "identify the State's causes of action and the parties

against whom the State is asserting claims."

On May 25, 2007, the district court granted the State's

motion to intervene. Bangor II, 2007 WL 1557426, at *4. The court

held that the State's interests would not be adequately represented

by the other parties involved, and that although it was "puzzling

to the Court that the State decided to wait approximately four

years to intervene," it was also true that "the State has acted

expeditiously since learning how its interests were imperilled by

the Court's June 27, 2006 decision." Id. at *3. The court also

ruled that "the State's representation that it 'will take no action

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in this case against any of the third or fourth parties' suggests

that its intervention will either have no impact on the Third

Parties or may serve to consolidate and simplify any attempts to

hold any third or fourth party liable for remediation of the site."

Id. at *4. The court further held that under the "unique

circumstances" of this case, "the Court believes it is a proper

exercise of its discretion to excuse the State's failure to file a

pleading and rely on the presented record in considering the merits

of the claims that serve as the basis for the State's request to

intervene." Id.

H. Consent Decree

Meanwhile, on April 11, 2007, Bangor, Citizens, and the

State, as a proposed intervenor, filed a proposed Consent Decree.

The Decree specified that the parties' underlying agreement was

"premised upon the Court's approval of all material terms" of the

Decree on or before June 15, 2007.

Under the terms of this Decree, Maine covenanted not to

sue or take administrative action against Citizens under federal or

state laws, including common law, for contamination at the Site,

"whenever such claims may have arisen or arise in the future." The

covenant included claims based on natural resource damage and

future response actions.

The State gave Bangor a release from liability which was

limited to "any matter relating to Existing Contamination at the

-22-
Site and the work covered by this Decree" and "recovery of all past

and future Response and Oversight Costs." The DEP reserved all

rights against the City, but not Citizens, for natural resource

damage. It also reserved the right to institute proceedings to

modify the Decree to compel Bangor or its successors, but not

Citizens, to perform further response actions or to reimburse the

DEP for additional response and oversight costs if new conditions

at the Site were discovered or new information came to light

indicating that the remedial action outlined in the Decree was

insufficient.

Bangor and Citizens waived all claims against the State

and the DEP regarding existing contamination at the Site and work

covered by the Decree. Significantly as to the third- and fourth-

party defendants, they "reserve[d] all rights and defenses that

each or either of them may have in law or in equity for any claims

or causes of action against any non-party to this Decree." This

meant they could seek contribution from the parties who were not

signatories.

Citizens and Bangor also sought protection from all

contribution actions or claims for matters covered by the Decree,

such that "neither the City nor Citizens shall be liable for claims

for contribution brought by any party, or for any claims whatsoever

brought by any other potentially responsible party."

-23-
 In exchange, Citizens agreed to make payments to Bangor,

inter alia, for the costs of remedial actions. Bangor assumed any

and all of Citizens's liabilities relating to the Site. Bangor

assumed sole responsibility for performing remedial action at the

Site, which was to be performed under the supervision of the DEP

and according to terms and conditions set forth in the Decree. The

provision assigning Bangor responsibility contained the express

provision that "this assumption of sole responsibility by the City

shall in no way relieve any person or entity not party to this

Consent Decree from liability, or prevent the City or its assignees

from pursuing claims against those parties relating to the Existing

Contamination."

The remainder of the Decree outlined Bangor's specific

responsibilities regarding remediation of the Site. These

provisions called for extensive involvement by the DEP, which was

to receive frequent plans and reports and was required to approve

the Projects Operation Plan before its implementation.

I. Settlement Agreement

The Decree stated that there was a separate Settlement

Agreement between Citizens and Bangor. The State was not a party

to the Settlement Agreement.

Though not submitted by the Decree signatories, the

Agreement was submitted to the court by third and fourth parties.

The Agreement contained terms that "set out with particularity the

-24-
obligations and covenants" between Bangor and Citizens, and those

terms would ultimately govern each party's relative share of

responsibility. The court considered some of the terms of the

Settlement Agreement in considering the approval of the Consent

Decree.

The Settlement Agreement stipulates that within fifteen

days of its effective date, Citizens is to pay $7.625 million into

an escrow account. Bangor assigns to Citizens any and all claims

it had or may have had against third parties with respect to the

Site. If any of the third parties were to pay any amount to

resolve a claim, Citizens can deduct all related expenses, and

remaining proceeds are to be divided two-thirds to Citizens and

one-third to the escrow account. If any remedial work at the Site

is performed with a federal appropriation, Citizens will receive a

refund from the escrow account equal to two-thirds of the cost of

that remedial work.

J. Ensuing Claims Against Third-Party Defendants

On April 12, 2007, before approval of the Decree,

Citizens filed a motion for leave to file supplemental third-party

complaints. Citizens asserted that its settlement with the City

gives rise to two new sets of claims under CERCLA section

113(f)(3)(B). This section provides that a person who has resolved

its liability to a state for some or all of a response action can

seek contribution from persons who are not parties to the

-25-
settlement. See 42 U.S.C. § 9613(f)(3)(B). Under this provision,

Citizens sought to file supplemental claims based both (1) on any

amount that it agreed to pay under the Consent Decree which was

above and beyond its fair share of liability and, (2) because

Bangor was assigning its third-party claims to Citizens, on the

amount that the City agreed to pay above and beyond its fair share

of liability.

K. Court's Approval of Consent Decree

On April 13, 2007, the district court ordered expedited

briefing on the motion for entry of the Consent Decree. The court

also ordered that copies of the proposed Consent Decree be

published in the Bangor Daily News and on the DEP's website. This

was done. The court also ordered that public comments be filed

promptly with the court. The court declined then to rule on

Citizens's motion to file supplemental third-party claims and the

pending motions for judgment by third parties.

On May 25, 2007, in the same order in which it permitted

the State and the DEP's motion to intervene, the court approved and

ordered the entry of the Consent Decree, as amended, as a partial

final judgment. The court postponed ruling on other pending

motions, including the motions for judgment filed by various third

parties and Citizens's motion for leave to file supplemental third-

party complaints. Bangor II, 2007 WL 1557426, at *1.

-26-
 The district court assessed the proposed Consent Decree

to determine whether it was fair (including both procedural and

substantive fairness), reasonable, and consistent with the purpose

of CERCLA. The court noted that in making this inquiry, it had to

"acknowledge 'the wide range of potential problems and possible

solutions' and thereby leave it to the parties to resolve 'highly

technical issues and relatively petty inequities.'" Id. at *6

(quoting United States v. Cannons Eng'g Corp., 899 F.2d 79, 85-86

(1st Cir. 1990)).

As for procedural fairness, the district court noted that

it should "look to the negotiation process and attempt to gauge its

candor, openness, and bargaining balance." Id. (quoting Cannons,

899 F.2d at 86) (internal quotation marks omitted). Meanwhile, it

focused the substantive fairness inquiry on "concepts of corrective

justice and accountability," which can include a comparison of the

proportion of total costs to be paid by the settlers with the

proportion of liability attributable to them. Id. at *7 (quoting

United States v. Charles George Trucking, Inc., 34 F.3d 1081, 1088

(1st Cir. 1994)) (internal quotation marks omitted). As for the

reasonableness inquiry, the court noted that this circuit "has

explicitly called upon the Court to look at the following factors:

(1) the 'technical adequacy' or 'efficaciousness [of the decree] as

a vehicle for cleansing the environment;' (2) 'whether the

settlement satisfactorily compensates the public for the actual

-27-
(and anticipated) costs of remedial and response measures;' and (3)

'the relative strength of the parties' litigation positions.'" Id.

at *8 (quoting Cannons, 899 F.2d at 89-90). The court did so.

The district court pointed out that under the terms of

the Consent Decree and underlying Settlement Agreement, Citizens

would pay $7.625 million into an escrow account. It described the

arrangement as follows:

Citizens also has agreed to continue to pursue
other third parties, which it continues to believe
are responsible for contributing the contamination
in the Cove. To that end, the Settlement Agreement
assigns to Citizens any claims that the City might
have against Third Parties related to the Site.
The City, for its part, has agreed to be
responsible for the actual remediation of the Site,
which will require it to work closely with the
State to finalize and implement a remediation plan.
Under the terms of the Consent Decree, the City is
financially responsible for the cost of remediation
to the extent it exceeds the balance of the escrow
fund.

Id. at *5. The court noted that the figure of $7.625 million

represented the "upper limit" of what Citizens could pay, since

under the Settlement Agreement, Citizens could end up recouping

some of this amount because of its right to receive a refund from

the escrow fund equal to two-thirds of any recoveries from third

parties or the cost of any remediation work completed with a

federal appropriation. Id. at *5 n.5.

The court considered the Settlement Agreement when it

expressly stated that its assessment of the Consent Decree was

based upon the fact that Citizens had agreed to pay "up to" $7.625

-28-
million as well as the possibility of Citizens's paying less than

this amount. Id. The court however declined the request of some

third and fourth parties that it "give equal consideration to the

Settlement Agreement." Id. at *5 n.6. The court reasoned that it

had reviewed the terms of the Settlement Agreement, that the

Consent Decree would not be contingent on the Settlement Agreement,

and that the Settlement Agreement "in no way 'trumps' the terms of

the Consent Decree."6 Id.

As for procedural fairness, the court concluded that "as

between the State, the City and Citizens, the Court is amply

satisfied that the Consent Decree represents the end result of a

procedurally fair, arm's-length negotiation process." Id. at *6.

The court rejected the contention of third and fourth parties that

they were unfairly excluded from the settlement process, noting

that the record was "devoid of any evidence, including any

affidavits of counsel, suggesting that any third or fourth party

asked to attend or participate in settlement talks . . . but were

affirmatively excluded." Id. at *7. The court remarked that

"[d]espite the lack of an invitation, the status reports

undoubtedly put the third and fourth parties on notice that

settlement discussions were ongoing. Given that notice, these

6
The court also noted that the two sets of comments it
received from the public during the comment period came from third
and fourth parties. The court stated that it had reviewed these
comments and "determined that they do not require any discussion in
the context of the pending Motion." Id. at *5 n.7.

-29-
parties could have certainly requested the opportunity to

participate." Id. The court further pointed out that "[a]lthough

a global resolution might have been possible and even preferable,

it is not surprising or unfair that the City and Citizens would

reach a settlement without the participation of the third or fourth

parties given the trifurcated nature of the proceedings." Id.

With respect to substantive fairness, the court noted

that although there remains uncertainty about the total cost of the

Dunnett's Cove remediation, it could still determine that the

Consent Decree is substantively fair. The court pointed out that

"[t]he First Circuit previously has endorsed the trial court

'confin[ing] its inquiry to the substantive fairness of the

aggregate class contribution' without concerning itself as to how

the members of the settling class have chosen to divvy up the

various costs and risks." Id. (quoting Charles George Trucking, 34

F.3d at 1088-89) (citations and internal quotation marks omitted).

It also noted that pursuant to the Consent Decree, "the City and

Citizens have agreed to fund the entire remediation regardless of

whether contribution is ever received from other parties or

sources." Id. The court did compare the proportion of total

projected costs to be paid by the settlors with the liability

attributed to them in the Phase One Findings, see Charles George

Trucking, 34 F.3d at 1087, and noted that "Citizens' contribution

of $7.625 million roughly correlates to the Court's previous

-30-
equitable apportionment, especially when one considers the

additional response costs [of $1.33 million] Citizens has already

incurred." Bangor II, 2007 WL 1557426, at *7 n.11.

As for reasonableness, the court pointed out that the

Consent Decree provides for a remedy "that would at least match

(and may well exceed)" any remedy that might have been developed in

a second phase trial. Id. at *8. The court also noted that by

allowing the remedial process to begin without requiring further

litigation, the Consent Decree would be efficient. Id. The court

rejected the argument that the Consent Decree's remedy was not

reasonable because it may exceed what the court would otherwise

have required; the court pointed out that "nothing prevents the

City and Citizens from agreeing to do more remediation than might

be required by CERCLA and RCRA." Id. With respect to litigation

positions, the court noted that "there was undoubtedly a good faith

basis for continuing this litigation," but both sides realized that

settlement would be a cost-effective solution. Id.

The court concluded that the Consent Decree was faithful

to the purposes of CERCLA and RCRA, noting that this determination

"clearly overlaps with the Court's assessment of reasonableness."

Id. at *9.

L. Ruling on Third- and Fourth-Party Motions for Judgment

The court then turned to the third and fourth parties'

motions for judgment and deferred decision, observing that

-31-
"[f]ollowing entry of the Consent Decree, these arguments rest on

a questionable premise and beg the question: to what extent, if at

all, can the Court rely on its Phase One Findings of Fact and

Conclusions of Law to make any decision regarding the viability of

Citizens' outstanding claims against the Third Parties?" Id. The

court requested briefing from the parties on this question.

With respect to Citizens's claims against the third

parties, the court remarked that "it seems that Citizens now has a

single CERCLA claim for contribution that is primarily governed by

42 U.S.C. § 9613(f)(3)(B)." Id. The court held that this claim

"would be best pursued as an entirely new case." Id. at *10. The

court noted that absent a "compelling objection," such a new case

would also include the third and fourth parties' complaints. The

court noted that its "interest in seeing these claims proceed as a

separate case is driven primarily by pragmatic, docket management

concerns." Id.

Various third and fourth parties filed motions for

reconsideration of the court's rulings. Citizens filed a

supplemental brief arguing that the court's Phase One Findings and

Conclusions should not be considered the law of the case, noting

that the court had never entered those as a final judgment, whereas

it had entered the Consent Decree as a final judgment. Various

third- and fourth-party defendants filed an opposing motion arguing

that Citizens could not "unilaterally expunge the record

-32-
established over four years of litigation simply by entering a

settlement after trial of the claims brought by and against it."

On July 20, 2007, the court denied the third and fourth

parties' motions for reconsideration of its approval of the Consent

Decree. The court noted that it was not "persuaded that the Third-

Party and Fourth-Party Defendants are prejudiced by the entry of

the Consent Decree as a final judgment. . . . [T]he entry of the

Consent Decree as a final judgment will neither create unnecessary

procedural complexities for the remaining action nor will it

adversely affect orderly future proceedings or the expeditious

final resolution of this matter."

M. Instructions to Citizens To File Third-Party Complaints
in a New Case

On July 20, 2007, the court denied Citizens's motion for

leave to file supplemental third-party complaints in the existing

case, given its preference that further proceedings be docketed as

a new case. The court's order included the following language:

After carefully considering the issues
briefed by the parties, the Court finds that
the Phase One Findings of Fact and Conclusions
of Law are not binding on the Court or any of
the parties to this litigation. Under the
changed circumstances in the case, those
findings and conclusions were superseded by
the Settlement Agreement reached between the
City of Bangor and Citizens and the Court
approved Consent Decree between the State of
Maine, the City of Bangor, and Citizens. As
such, those findings and conclusions were
never available for appellate review and,
thus, never became final.

-33-
Accordingly, given that Citizens had expressed its willingness to

file its supplemental third-party complaints as a new case and, the

court concluded, there would not be any prejudice to the third

parties, the court ordered that the supplemental third-party

complaints be filed as a new case. The effect of the language

quoted above is presented as a major issue in this appeal.

On November 28, 2007, the court granted Citizens's motion

to dismiss its third-party claims without prejudice and deemed all

of the pending third- and fourth-party motions for judgment moot

and therefore dismissed all of them without prejudice. City of

Bangor v. Citizen Commc'ns Co., No. 02-183, 2007 WL 4233094, at *1-

2 (D. Me. Nov. 28, 2007).

On November 29, 2007, the district court issued a final

judgment in which it entered judgment in favor of the United States

Army Corps of Engineers with respect to Citizens's third-party

claims and noted that the Amended Consent Decree (which did not

involve any substantive changes from the proposed Consent Decree)

had been entered as a final judgment.

II.

The appeal now before us is a consolidated appeal by the

non-MGP parties (Barrett Paving, Honeywell International, Beazer

East, Colas, Dead River Company, and the Speirs parties) of the

district court's entry of the Consent Decree; the court's order

that Citizens's motion to file supplemental claims and the third-

-35-
and fourth-party motions for judgment be dismissed without

prejudice and refiled as a new case; and the July 20, 2007 order in

which the court declared that its Findings of Facts and Conclusions

of Law were "superseded" by the Consent Decree.

A. The Consent Decree

Almost all of the law regarding approval of CERCLA

consent decrees comes from cases in which the United States was a

party. That is not our situation. It is worth considering the

roles CERCLA sets forth in cases involving private parties and

states.

CERCLA gives the federal government a role not given to

the states. CERCLA enables the federal government to facilitate

the cleanup of toxic waste sites. "As its name implies, CERCLA is

a comprehensive statute that grants the President broad power to

command government agencies and private parties to clean up

hazardous waste sites." Key Tronic Corp. v. United States, 511

U.S. 809, 814 (1994).

Section 104 of CERCLA authorizes the President to

undertake removal or other appropriate remedial action whenever a

hazardous substance is released or there is a substantial threat of

such release. 42 U.S.C. § 9604(a)(1). The President must promptly

notify the appropriate state officials and seek to coordinate

actions under this section with them. Id. § 9604(b)(2). The

President cannot enter into remedial actions under this section

-36-
unless the state where the hazardous release first occurs enters

into an agreement providing, inter alia, that it will assure all

future maintenance of the removal and remedial action. Id. §

9604(c)(3).

Section 106 of CERCLA permits the President, when he

determines that there may be an "imminent and substantial

endangerment to the public health or welfare," to require the

Attorney General to seek an injunction in the federal district

court in the district where the threat occurs. Id. § 9606(a).

Courts have held that this section applies only to the federal

government, and so states and other entities are unable to seek

injunctions under CERCLA. Colorado v. Idarado Mining Co., 916 F.2d

1486, 1493 (10th Cir. 1990) (noting that "[c]ourts have adhered to

the view that injunctions are not available to states and other

non-federal plaintiffs under CERCLA" and collecting cases).

CERCLA also includes provisions that permit both states

and private parties to recover cleanup costs and seek contribution

from responsible parties and so provides further incentives for the

remediation of hazardous waste sites. Key Tronic, 511 U.S. at 816

(noting that CERCLA "expressly authorizes a cause of action for

contribution in [§] 113 and impliedly authorizes a similar and

somewhat overlapping remedy in [§] 107").

Congress has also recognized a special role for states in

authorizing judicial approval for consent decrees in which the

-37-
state is a party, and then authorizing both contribution protection

and contribution claims. Under section 113 of CERCLA, co-liable

parties may seek contribution from one another, and courts

resolving such claims "may allocate response costs among liable

parties using such equitable factors as the court determines are

appropriate." 42 U.S.C. § 9613(f)(1). Section 113 contains

provisions that were added to CERCLA by the Superfund Amendments

and Reauthorization Act ("SARA") of 1986, Pub. L. No. 99-499, 100

Stat. 1613; see also Key Tronic, 511 U.S. at 816. These provisions

give protection from contribution claims to parties that settle

with the federal government or a state in a judicially or

administratively approved settlement, and they grant contribution

claims against non-settlors to these settling parties. Section

9613(f)(2) provides: "A person who has resolved its liability to

the United States or a State in an administrative or judicially

approved settlement shall not be liable for claims for contribution

regarding matters addressed in the settlement." In addition, §

9613(f)(3)(B) provides: "A person who has resolved its liability to

the United States or a State for some or all of a response action

. . . in an administrative or judicially approved settlement may

seek contribution from any person who is not party to a settlement

-38-
. . . ." Congress thus authorized judicial approval of consent

decrees entered into with states.7

States are given a special role in defining allowable

costs and cleanup standards. Section 107 authorizes the recovery

of costs expended in accordance with the National Contingency Plan

("NCP").8 See 42 U.S.C. § 9607(a)(4)(B). Actions undertaken by

the federal or a state government are presumed not to be

inconsistent with the NCP; private plaintiffs have the burden of

proving that their response actions are consistent with the NCP.

See 1 A.J. Topol & R. Snow, Superfund Law and Procedure, § 1:2, at

10-11 (2007 ed.). Often that showing is met if the remediation

work is carried out under the approval and monitoring of the

appropriate state environmental agency. See, e.g., NutraSweet Co.

v. X-L Eng'g Co., 227 F.3d 776, 791 (7th Cir. 2000); Esso Standard

7
It is not clear whether this statutory contribution
protection extends to agreements entered into with parties other
than the federal government or a state. See City of Detroit v.
Simon, 247 F.3d 619, 628 (6th Cir. 2001) (there is no contribution
protection for a party that entered into a settlement with Detroit
because the city cannot be equated with the United States or a
state, as the language of CERCLA requires); 2 A.J. Topol & R. Snow,
Superfund Law and Procedure, § 7:91, at 181 (2007 ed.) ("Although
the text of CERCLA is silent regarding the right of contribution
protection for private party settlements, to facilitate settlement
. . . a number of federal courts have interpreted CERCLA's language
to include private parties . . . .").
8
"The national contingency plan specifies procedures for
preparing and responding to contaminations and was promulgated by
the Environmental Protection Agency . . . pursuant to CERLCA § 105,
42 U.S.C. § 9605." Cooper Indus., Inc. v. Aviall Servs., Inc., 543
U.S. 157, 161 n.2 (2004); see also 40 C.F.R. § 300.

-39-
Oil Co. (P.R.) v. Rodríguez Pérez, No. 01-2012, 2004 WL 2238894, at

*13 (D.P.R. 2004). The appellants here do not claim the Consent

Decree does not comply with the NCP.

Section 121 specifies standards for cleanups conducted

pursuant to CERCLA. Any such cleanup must comply with federal

standards or more stringent state standards if they exist. 42

U.S.C. § 9621(d)(2)(A). States, in turn, are given the authority

to enforce "any Federal or State standard, requirement, criteria,

or limitation to which the remedial action is required to conform

under this chapter in the United States district court for the

district in which the facility is located." Id. § 9621(e). A

number of provisions in section 121 relate to state involvement in

cleanups, requiring the President to promulgate regulations to

ensure that a state has "substantial and meaningful involvement" in

the "initiation, development, and selection of remedial actions to

be undertaken in that State." Id. § 9621(f)(1).

As to consent decrees, SARA also added provisions, in

section 122, that authorize the President to enter into settlements

with private parties and lay out procedures governing such

settlements. See id. § 9622; 2 Topol & Snow, supra, § 7:89, at 155

(noting how the settlement process was "radically changed" by SARA,

which "expressly authorized EPA to enter into settlement agreements

with PRPs and provided both procedural and substantive direction

concerning the forms that those settlements should take"). The

-40-
section 122 procedures include that any agreement between the

United States and a PRP under section 122 is to be entered in the

appropriate federal district court as a consent decree. Id. §

9622(d)(1)(A). At least thirty days before a final judgment is

entered, the proposed settlement must be filed with the court and

the Attorney General must provide an opportunity for persons not

named as parties to the action to comment. Id. §

9622(d)(2)(A),(B). The Attorney General is to consider and file

with the court any written comments. Id. § 9622(d)(2)(B). In this

case the district court essentially followed these procedural

requirements even though the United States was not a party.

The vast majority of the case law involving court

approval of consent decrees involves cases in which the United

States is a party. See, e.g., United States v. Davis, 261 F.3d 1

(1st Cir. 2001); Charles George Trucking, 34 F.3d at 1081; Cannons,

899 F.2d at 79. It is common for CERCLA consent decrees between or

among private parties and a state also to be submitted for court

approval. See, e.g., New York v. Panex Indus., Inc., No. 94-0400E,

2000 WL 743966, at *1 (W.D.N.Y. June 6, 2000); Kelley v. Wagner,

930 F. Supp. 293, 294-95 (E.D. Mich. 1996); State of Ariz. v.

Motorola, Inc., 139 F.R.D. 141, 147 (D. Ariz. 1991).9

9
In Davis, 261 F.3d 1, after the initial phase of a CERCLA
action between the United States and a PRP was resolved, there was
a contribution litigation between private parties which was
resolved by a settlement in the form of a judicially approved
consent decree. In Davis we recognized several bases for the

-41-
 Against this background we evaluate appellants' claims.

B. Whether Appellants Have Standing To Challenge the Decree

We turn to the Consent Decree in this case, beginning

with Citizens's argument that the appeal should be dismissed

because the third and fourth parties lack standing to challenge the

Decree.

Citizens points to case law establishing that "[a]

nonsettling defendant does not ordinarily have standing to object

to a court order approving a partial settlement since the

nonsettling defendant is generally not affected by the settlement."

In re Viatron Computer Sys. Corp. Litig., 614 F.2d 11, 14 (1st Cir.

1980). That misses the point. Here, the third and fourth parties

are potentially affected by the settlement. Citizens asserts,

inter alia, that by virtue of the Decree alone, it has the right to

collect from third parties under CERCLA section 113(f)(3)(B), which

provides that an entity "who has resolved its liability to the

United States or a State for some or all of a response action or

for some or all of the costs of such action in an administrative or

authority of the district court to approve such a consent decree.
One source was the fairly broad authority of courts to approve
consent decrees recognized in Local No. 93, International Ass'n of
Firefighters v. City of Cleveland, 478 U.S. 501, 525 (1986).
Davis, 261 F.3d at 22. Another was to promote the objectives of
CERCLA by facilitating the prompt remediation of hazardous waste
sites, id., especially given that these claims arose from the
original suit filed by the United States. We also pointed out that
it is permissible for consent decrees to provide relief broader
than a court could have awarded after trial. Id.

-42-
judicially approved settlement may seek contribution from any

person who is not a party to a settlement." 42 U.S.C. §

9613(f)(3)(B).

Standing generally has two components: statutory and

constitutional. We do not understand Citizens's objection to be a

challenge to statutory standing. After all, our precedent under

CERCLA has allowed a non-settling third party to challenge a

consent decree entered into by a party that was seeking

contribution from the third party. Davis, 261 F.3d at 17-18.

Indeed, as described below, Citizens's position would undercut one

of CERCLA's goals.

The Article III constitutional requirements for standing

are "expressed in a familiar three-part algorithm: a would-be

plaintiff must demonstrate a concrete and particularized injury in

fact, a causal connection that permits tracing the claimed injury

to the defendant's actions, and a likelihood that prevailing in the

action will afford some redress for the injury." Me. People's

Alliance & Natural Res. Def. Council v. Mallinckrodt, Inc., 471

F.3d 277, 283 (1st Cir. 2006) (citing Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992)). These components are

easily satisfied on the facts here. The third and fourth parties

assert that the entry of the Consent Decree injures them because it

opens the door for Citizens to seek contribution from third

parties.

-43-
 Moreover, it is well established that "a non-settling

defendant has standing to object to a partial settlement which

purports to strip it of a legal claim or cause of action, an action

for indemnity or contribution for example." Waller v. Fin. Corp.

of Am., 828 F.2d 579, 583 (9th Cir. 1987). "[B]ecause 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." United States v. Charter Int'l Oil Co., 83

F.3d 510, 515 (1st Cir. 1996). As Citizens acknowledges, the

Consent Decree includes a provision that "Citizens and the City are

entitled to protection from all contribution actions or claims for

the matters addressed in this decree."

Further, as the third and fourth parties point out, the

Decree does not extinguish Maine's claims "against any party other

than Citizens for natural resource damages, or for response costs

that overrun prior estimates." Indeed, CERCLA's permitting broad

contribution protection for settling parties is "not a scrivener's

accident"; it can provide a valuable incentive for parties to

settle early. United Techs. Corp. v. Browning-Ferris Indus., Inc.,

33 F.3d 96, 103 (1st Cir. 1994).

We reject the argument that appellants lack standing and

get to the real issues.

-44-
C. Standard of Review of the Consent Decree

CERCLA does not mandate a particular test for courts that

have been asked to approve a consent decree under either 42 U.S.C.

§ 9622(d)(1)(A), when the United States is a party, or under the

contribution section, id. § 9613(f), when a state is a party. In

suits involving the United States, courts have developed a three-

pronged inquiry: is the decree "reasonable, faithful to the

statute's objectives, and fair (both procedurally and

substantively)"? Charles George Trucking, 34 F.3d at 1084 (citing

Cannons, 899 F.2d at 85). This inquiry is similar to the one used

by courts when reviewing consent decrees generally: "District

courts must review a consent decree to ensure that it is 'fair,

adequate, and reasonable; that the proposed decree will not violate

the Constitution, a statute or other authority; [and] that it is

consistent with the objectives of Congress . . . .'" Conservation

Law Found. of New England, Inc. v. Franklin, 989 F.2d 54, 58 (1st

Cir. 1993) (quoting Durrett v. Hous. Auth. of Providence, 896 F.2d

600, 604 (1st Cir. 1990)); see also Local No. 93, Int'l Ass'n of

Firefighters v. City of Cleveland, 478 U.S. 501, 512-13 (1986).

This court has not had the occasion to consider a consent

decree involving a state rather than the federal government. Other

courts have applied the test articulated in Cannons and Charles

-45-
George Trucking to decrees involving states as parties.10 See,

e.g., Panex Indus., 2000 WL 743966, at *1; Kelley, 930 F. Supp. at

297; Motorola, Inc., 139 F.R.D. at 147. As explained below, the

fact that the United States is not a party does affect the level of

deference we apply.

An appellate court will overturn a district court's

decision to approve the entry of a CERCLA consent decree in a case

involving the United States "only for manifest abuse of

discretion." Charles George Trucking, 34 F.3d at 1085. An abuse

of discretion occurs when "a material factor deserving significant

weight is ignored, when an improper factor is relied upon, or when

all proper and no improper factors are assessed, but the court

makes a serious mistake in weighing them." Cannons, 899 F.2d at 84

(quoting Indep. Oil & Chem. Workers of Quincy, Inc. v. Procter &

Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988)) (internal

quotation marks omitted).

10
Some CERCLA suits are brought by private parties and the
resulting settlements do not involve consent decrees. Courts have
applied an analogous inquiry in determining whether to approve such
private settlements, evaluating the "'fairness, adequacy and
reasonableness' of private settlements by considering the criteria
for apportionment between the parties, the public policy favoring
settlements, the strength of the case, the amount of the settlement
offer, and the like." 2 Topol & Snow, supra, § 7:91, at 181; see
also Amoco Oil v. Dingwell, 690 F. Supp. 78, 85 (D. Me. 1988),
aff'd sub nom. Travelers Indem. Co. v. Dingwell, 884 F.2d 629 (1st
Cir. 1989).

-46-
 In CERCLA settlements in cases involving the United

States which have been approved by the district court, an appellate

court applies two levels of deference. The first layer of

deference is to the series of judgments made by the United States

and its expert and experienced staff at the EPA in reaching a

settlement. "[T]he first layer of insulation implicates the trial

court's deference to the agency's expertise and to the parties'

agreement." Cannons, 899 F.2d at 84.

The second layer of deference is to the trial court;

"[b]ecause approval of a consent decree is committed to the trial

court's informed discretion, the court of appeals should be

reluctant to disturb a reasoned exercise of that discretion." Id.

(citations omitted).

In this case, the agency involved was not the federal

EPA, and so there can be no deference to the EPA. The question

becomes what deference, if any, should be given to a state agency

which is not charged with implementing CERCLA. We recognize the

DEP does have a mandate under state law to "prevent, abate and

control the pollution of the air, water and land and preserve,

improve and prevent diminution of the natural environment of the

State." Me. Rev. Stat. Ann. tit. 38, § 341-A.

Federal courts generally defer to a state agency's

interpretation of those statutes it is charged with enforcing, but

not to its interpretation of federal statutes it is not charged

-47-
with enforcing. Bldg. Trades Employers' Educ. Ass'n v. McGowan,

311 F.3d 501, 507 (2d Cir. 2002); see also Idaho Dep't of Health &

Welfare v. U.S. Dep't of Energy, 959 F.2d 149, 152 (9th Cir. 1992).

We choose to accord some deference to Maine's decision to

sign onto the Consent Decree, but not the same amount of deference

we would accord the EPA in a consent decree involving the United

States. We give deference in recognition that the state agency has

some expertise. This lesser deference does not displace the

baseline standard of review for abuse of discretion. Even if we

gave the Maine DEP no deference, we would still find, on the facts

here, no abuse of discretion.

D. Merits of Challenge to Court Approval of Decree

Generally, two types of groups challenge CERCLA consent

decrees: concerned local governments or citizens who believe that

the decree is inadequate to ensure a proper cleanup, and PRPs who

were not parties to the settlement and worry that they will be left

to bear a disproportionate share of cleanup costs. 2 Topol & Snow,

supra, § 7:92, at 185-86. Here there can be no concern that the

Decree is inadequate to ensure a proper cleanup since the settling

parties are together covering one hundred percent of cleanup costs.

Indeed, appellants do not challenge the reasonableness of that

aspect of the Decree.

Rather, the appellants' primary concern appears to be

that the terms of the Consent Decree will allow one of the settling

-48-
parties, Citizens, (a) to assert claims against them for

contribution that they believe would have been barred by the

court's earlier Phase One Findings and Conclusions; (b) to have

contribution protection; and (c) to pay less than its fair share.

There is no real claim that the court operated under the

wrong legal standard: the claim is that the court did not

faithfully execute the standard.11

Appellants present four major arguments that the entry of

the Decree was in error: (a) the district court did not conduct a

sufficiently rigorous inquiry of the Settlement Agreement; (b) the

Decree is not substantively fair because it is impermissibly

favorable to Citizens; (c) the Decree is not procedurally fair

because its material terms were negotiated privately and adopted

without significant scrutiny by the State; and (d) the Decree

violates CERCLA section 122.

1. Failure To Conduct Rigorous Scrutiny of the
Settlement Agreement

The third and fourth parties argue that the district

court should have conducted a more searching inquiry of the terms

of the private Settlement Agreement before it approved the Decree.

11
In a footnote, the third and fourth parties assert that
Maine violated Fed. R. Civ. P. 24 by not filing a pleading with its
motion to intervene, and they object to the district court's
excusing this. Since this argument is presented only in a passing
fashion in a footnote, we deem it to be waived. United States v.
Van Anh, 523 F.3d 43, 53 n.8 (1st Cir. 2008). Even if the argument
were not waived, there was no abuse of discretion in the district
court's decision to elevate substance over form.

-49-
They are particularly concerned with the assignment of the City's

third-party claims to Citizens and the arrangement through which

Citizens can keep two-thirds of any recovery from third parties net

of litigation costs.

The appellants' argument that the district court did not

consider the terms of the Settlement Agreement is manifestly

untrue. The court expressly stated that it was considering certain

settlement terms from the Agreement, in particular the $7.625

million figure and the fact that Citizens might end up paying less

than that amount because of its potential to recover from third

parties through assignment and by contribution or benefit from

federal payments. Bangor II, 2007 WL 1557426, at *5 nn.5-6.

The argument is made that the court was required to go

farther than it did. The court quite properly considered the

private Settlement Agreement to the extent it was germane to the

scrutiny required of the Consent Decree. No more was needed.

Private settlements usually "do not entail the judicial approval

and oversight involved in consent decrees." Buckhannon Bd. & Care

Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598,

604 n.7 (2001).

Appellants' argument then shifts in character to an

argument that the court should have ruled, in the course of

considering the Consent Decree, that any assignment of claims by

the City in the private Settlement Agreement to Citizens was

-50-
invalid.12 The court very carefully said it was not then deciding

the question of the enforceability of either these provisions or of

the likelihood that Citizens would ultimately pay less than $7.625

million. Bangor II, 2007 WL 1557426, at *5 n.5. The decision by

the district court not to resolve every issue that could arise from

the later enforcement of the Consent Decree was correct. See

Charter Int'l Oil, 83 F.3d at 515-16.

The district court did not abuse its discretion by not

scrutinizing the purported assignment to test its validity.

2. Procedural Fairness

To gauge procedural fairness, "a court should ordinarily

look to the negotiation process and attempt to gauge its candor,

openness, and bargaining balance." Cannons, 899 F.2d at 86. Here,

the district court concluded that "as between the State, the City

and Citizens, the Court is amply satisfied that the Consent Decree

represents the end result of a procedurally fair, arm's-length

negotiation process." Bangor II, 2007 WL 1557426, at *6. The

court also rejected the contention of third and fourth parties that

they were unfairly excluded from the settlement process. As a

factual matter, the court noted that "[d]espite the lack of an

invitation, the status reports undoubtedly put the third and fourth

12
The third and fourth parties argue that this assignment
is barred by estoppel because the City had not timely asserted its
claims against third parties, and the Phase One Findings and
Conclusions were based on "the City's affirmative decision not to
bring claims against third parties."

-51-
parties on notice that settlement discussion were ongoing." Id. at

*7.

The EPA itself, when the United States institutes a

CERCLA action, does not need to open settlement offers to all PRPs.

Cannons, 899 F.2d at 93. It also does not need to spoon-feed them:

"In the CERCLA context, the government is under no obligation to

telegraph its settlement offers, divulge its negotiating strategy

in advance, or surrender the normal prerogatives of strategic

flexibility which any negotiator cherishes." Id.

The appellants focus here not on their exclusion from the

settlement talks but rather on a series of arguments that the

State's involvement was so cursory as to undermine the integrity of

the procedures used. Specifically, they argue that the State was

not sufficiently involved in the negotiation process, did not

explain why the Decree differed from its prior administrative

findings, and did not respond to the public comments it received

about the Decree.

The claim is not supported by the record. The district

court could properly credit Maine's representations that

[t]he negotiations, which occurred in late 2006
through early 2007, included numerous meetings,
telephone calls, and exchanges of draft consent
decrees. Both DEP and the Maine Office of the
Attorney General were actively involved in the
negotiations. The State authored the first draft
of the Consent Decree in late 2006.

-52-
Br. of Appellees State of Me. & Me. Dep't of Envtl. Prot. at 4

(citations omitted). The State also noted that the DEP will be

significantly involved in the implementation of the Decree. For

instance, Bangor has already submitted to the DEP a work plan for

conducting pre-design studies, and the Decree includes a process

for the proposal and consideration of modified remedies for the

Site, under which the DEP will make determinations regarding which

remedies or modified remedies will be implemented. Further,

"[g]iven that the Consent Decree will result in the cleanup being

performed and fully funded by responsible parties, the State's

release of its present and future claims against Citizens is in no

way an abdication of the State's responsibility to protect the

public interest." Id. at 23.

Rather than address these facts, appellants try to

leapfrog to an inference of procedural unfairness from a conclusion

the State reached that they do not like. They argue the "extent of

the State's abdication of responsibility is apparent from its

statement that it had no obligation to look behind the combined

financial commitment of the settling parties to fund the

remediation." Br. of Appellants Barrett Paving Materials, Inc. et.

al. at 55. This is essentially the same argument that the third

and fourth parties make with respect to the district court: that

the court should not have approved the Decree because Citizens was

getting too beneficial a deal vis-à-vis Bangor. Maine's failure to

-53-
address this concern does not turn the State into a mere "bystander

to negotiations of the substantive settlement terms." Id.

Appellants fall back on an argument that the State's

signing onto the Consent Decree was deficient because it was

inconsistent with the State's prior position that Citizens was the

party responsible for the contamination. But, as the State notes,

the June 2006 Phase One Findings and Conclusions were an

"intervening event" between the DEP's March 2004 statement that

"evidence points to the MGP as the primary or sole source of the

tar plume" and its participation in drafting the Consent Decree.

There was no inconsistency.

Appellants' last argument of procedural unfairness also

fails. It asserts that the State did not respond to public

comments regarding the Decree, and that this violated CERCLA

section 122, 42 U.S.C. § 9622(d)(2)(B). Section 9622(d)(2)(B) does

not apply to agreements to which the United States is not a party.

Even if it did apply, it provides for comments by "persons who are

not named as parties to the action." Id. The two comments

received in this case were from third- and fourth-party defendants.

Appellants can hardly claim they were not adequately heard.

The district court did not abuse its discretion by

finding the Decree to be procedurally fair.

-54-
 3. Substantive Fairness

We give deference to the trial judge's sense of the

substantive fairness of the Decree, regardless of the fact that we

do not have the EPA's assessment, but only the State's. Cf. Davis,

261 F.3d at 24. Usually, there is deference to the EPA's judgment

on fairness, and no independent court inquiry. 2 Topol & Snow,

supra, § 7:91, at 173-75.

Here, the court appropriately first reasoned, after its

long history with the case, that it was "amply" satisfied that

there was procedural fairness, that this contributed to its

conclusion of substantive fairness, and that this Decree was

substantively fair. Bangor II, 2007 WL 1557426, at *6-7.

The court calibrated the estimated total costs of the

cleanup against the respective monetary liability being assumed by

the City and Citizens. The court took notice that the DEP had

previously estimated the range of possible cleanup costs to be

between $13.2 million and $21.9 million. Id. at *7 n.11. The

court noted that since the total costs of remediation were unknown,

and the amount of contribution was unknown, both the City and

Citizens were taking on risk. The cleanup, however, was

guaranteed, as was the payment of response costs. Id. at *7.

Appellants argue that the court was obligated to do more.

Specifically, they argue the fairness component is meant to provide

them rigorous protection in the end from paying more than their

-55-
fair share. From the point of view of the third and fourth

parties, Citizens should not, with the total amount being unknown,

be able to cap its liability at $7.625 million.

We think this is a misapprehension of the fairness

doctrine. The oft-cited language from cases where the United

States is a party is that the substantive fairness inquiry involves

"corrective justice and accountability, concentrating on 'the

proposed allocation of responsibility as between settling and non-

settling PRPs.'" Davis, 261 F.3d at 24 (quoting Charles George

Trucking, 34 F.3d at 1088). Thus, the substantive fairness inquiry

considers fairness in terms of both larger societal concepts such

as corrective justice and fairness to non-settling parties.

Under SARA, Congress intended there to be some mechanism

to police the EPA's conduct in settlements. Congress enacted SARA

in 1986 in order to "rein-in" the EPA; for instance, section 122

"contains detailed provisions that restrict EPA's freedom to

conduct negotiations and to enter into CERCLA settlement

agreements." 1 Topol & Snow, supra, § 1:3, at 14, 16; see also

Cannons, 899 F.2d at 89 (acknowledging the possibility of coercive

government settlement practices). That concern about overseeing

whether the EPA has been "fair" is not our concern here.

Further, this court has tended to treat private parties

in CERCLA settlement cases as entities who can protect themselves,

assuming the procedures are fair. This circuit has stressed that

-56-
"[t]here is little need for a court to police the substantive

fairness of a settlement as among settling parties of a particular

class. Sophisticated actors know how to protect their own

interests, and they are well equipped to evaluate risks and

rewards." Charles George Trucking, 34 F.3d at 1088. Therefore, a

court can "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" parties. Id. As a result, it "would have served no

useful purpose [for the district court] to go further and focus the

lens of inquiry on the fairness of each class member's

contribution." Id.

Settlements do not demand perfection. There are many

factors involved. "[A] PRP's assumption of open-ended risks may

merit a discount on comparative fault, while obtaining a complete

release from uncertain future liability may call for a premium."

Cannons, 899 F.2d at 88. Even more, this case exemplifies the

principle that there is a need to suitably reward early

settlements, particularly cost-effective ones. Id. Appellants

have been excused from the costs of the Phase One litigation; they

could have chosen to pursue settlement themselves, but chose not to

do so. Here, the data used to apportion liability fell within "the

broad spectrum of plausible appropriations." Id.

-57-
 The district court's evaluation of substantive fairness

was well within its discretion and this circuit's case law.

4. Compliance with CERCLA Section 122

The district court did not abuse its discretion in

concluding the Consent Decree complied with CERCLA. The appellants

claim that the Decree violates CERCLA because it does not comply

with 42 U.S.C. § 9622(f)(6)(A), which requires that a covenant not

to sue include an exception allowing the President to sue for

future liability that arises out of new developments, because it

provides for an unconditional release of future liability for

Citizens. The parties dispute whether the third and fourth parties

waived this argument by not sufficiently presenting it below.

Regardless of whether it was waived, the argument fails.

Section 122 of CERCLA plainly applies to settlements

involving the United States, and the third and fourth parties have

presented no convincing argument why we should disregard the clear

language of the statute and extend it to settlements involving

states and state agencies. See Arizona v. Components Inc., 66 F.3d

213, 217 (9th Cir. 1995) (noting that provisions of section 122 are

"not applicable to state settlements in which the EPA is not

involved"). The purpose of CERCLA section 122 is both to authorize

the President to enter into agreements with persons to perform

response actions and to impose specific restrictions on his doing

so. There is no evidence that Congress intended for states to be

-58-
similarly restricted in entering into consent decrees.13 Even so,

the Consent Decree here does give parallel protection to the State.

If there are new problems at the Site in the future, Maine is

entitled to seek additional costs from the City if necessary.

III.

We turn to the remaining challenges, including

appellants' concerns about the role of the Phase One Findings and

Conclusions. The challenge is to the district court's denial of

the non-MGP parties' motions for judgment on Citizens's third-party

claims on the grounds not of the merits, but on mootness because

the claims would be heard in the new lawsuit. The appellants also

object to certain language the district court used. We will assume

there is appellate jurisdiction. Appellants' arguments can be

grouped together, and have two themes.

In the first, appellants say they were entitled to have

judgment entered in their favor on their motions for judgment and

it was therefore wrong of the court to have allowed Citizens to

file contribution claims in a new action against them.14 They also

13
The appellants cite only one case, from the District of
Utah, which held that the section 122 consent not to sue
requirement should apply to agreements involving states. Utah v.
Kennecott Corp., 801 F. Supp. 553, 569 n.20 (D. Utah 1992).
However, in a subsequent decision, the same court reached the
opposite conclusion about the applicability of section 122 to
agreements involving states. Utah v. Kennecott Corp., 232 F.R.D.
392, 399 (D. Utah 2005).
14
There is no need to address Citizens's argument that the
appellants lack standing to challenge the dismissal of their

-59-
argue they are entitled to judgment because any assignment of

claims against them must be invalid. There was no error.

A district court enjoys inherent power to "control the

disposition of the causes on its docket with economy of time and

effort for itself, for counsel, and for litigants." Landis v. N.

Am. Co., 299 U.S. 248, 254 (1936); Taunton Gardens Co. v. Hills,

557 F.2d 877, 879 (1st Cir. 1977). Here, the district court

decided that the entire subject matter to which the motions for

judgment applied would be heard in a new case, where Citizens's

opposing motion to file supplemental claims for contribution would

also be considered. Appellants have not shown they would suffer

the "plain legal prejudice" that parties seeking to challenge a

dismissal without prejudice must demonstrate. Doe v. Urohealth

Sys. Inc., 216 F.3d 157, 160-61 (1st Cir. 2000).

The problem of a consent decree not resolving all matters

of interpretation which may be relevant in later contribution

actions is not a new one. In Charter International Oil, this court

held that in approving a consent decree with the EPA under CERCLA,

the district court must address only so many issues "as needed to

rule on the decree's fairness, reasonableness and fidelity to the

statute." Charter Int'l Oil, 83 F.3d at 515-16. We also noted

motions for judgment because there has been no adverse decision
against them, only a dismissal without prejudice. This argument is
foreclosed by circuit precedent. See Mirpuri v. ACT Mfg., Inc.,
212 F.3d 624, 628 (1st Cir. 2000); see also, e.g., Doe v. Urohealth
Sys. Inc., 216 F.3d 157, 160 (1st Cir. 2000).

-60-
that there could be prudential reasons for the district court not

to resolve more than necessary. Id. The district court, as we

understand it, astutely followed this course and did no more than

necessary. Thus, the court was under no obligation to rule on

appellants' motions for judgment15 before it approved the Consent

Decree. Appellants may reassert their motions in the new

litigation.

In their second theme, appellants fear that the court's

actions have deprived them of an argument they wish to make in the

new action based on their interpretation of the court's Phase One

Findings and Conclusions. They worry about language in the court's

order of July 20, 2007 that the Phase One Findings and Conclusions

have been "superseded" by the entry of the Consent Decree: "Under

the changed circumstances in the case, those findings and

conclusions were superseded by the Settlement Agreement reached

between the City of Bangor and Citizens and the Court approved

Consent Decree between the State of Maine, the City of Bangor, and

Citizens." Appellants fear that this language precludes them from

making an argument that since judgment was entered for the Army

Corps of Engineers in 2004, they are entitled to have judgment

entered on parallel reasoning in the existing lawsuit.

15
Nothing in the law of the case doctrine dictates the
order in which a court addresses issues.

-61-
 We view this language in the court's order as primarily

being directed at the difference in allocations between Citizens

and Bangor in the Phase One Findings and the Consent Decree. The

court, in an abundance of caution, was making clear that the

Consent Decree, and not the Phase One Findings, governed as to

allocations between the settling parties. The court's orders made

it perfectly clear it was not, in Phase One, ruling on the

liability of the third- and fourth-party defendants.

Since the district court has never ruled on appellants'

motion for entry of judgment, the law of the case doctrine plays no

role. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800,

815-16 (1988); Quern v. Jordan, 440 U.S. 332, 348 n.18 (1979);

Fiori v. Truck Drivers, Local 170, 354 F.3d 84, 90 (1st Cir. 2004).

Similarly, the court never ruled on the effect of the Phase One

Findings on third-party defendants and expressly reserved that

issue. Even if it had made such rulings, the law of the case

doctrine does not prevent a judge from changing his mind, so long

as there was an explanation and the court took into account

justified reliance. Fiori, 354 F.3d at 90.

To the extent appellants may be arguing, contrary to the

record, that the Phase One Findings were a final judgment, the

district court was plainly correct. No final judgment was entered

in Phase One.

-62-
 IV.

We affirm the district court's entry of the Consent

Decree and its dismissal without prejudice of the third and fourth

parties' motions for judgment and its allowance of Citizens's

motion to file supplemental claims in new litigation.

Affirmed. Costs are awarded to appellees.

-63-