United States District Court, W.D. Arkansas, El Dorado Division
O. Hickey, Chief United States District Judge.
the Court is Plaintiff United States of America's Motion
to Enter Consent Decree. (ECF No. 28). The Court is informed
that the motion is unopposed. The Court finds the matter ripe
October 31, 2018, Plaintiffs filed an amended complaint in
this action, seeking civil penalties and injunctive relief
pursuant to Sections 301, 309, and 311 of the Clean Water Act
(“CWA”), 33 U.S.C. § 1251 et seq.; the
Arkansas Water and Air Pollution Control Act; and the
Arkansas Hazardous Waste Management Act. The alleged
violations arise from an oil spill at Defendants' pump
station and tank facility in Magnolia, Arkansas, resulting
from a pipe rupture and subsequent equipment failure.
Plaintiffs allege that Defendant Delek spilled harmful
quantities of oil into navigable waters of the United States
and harmed wildlife, habitat, and the environment. Plaintiffs
also allege that the oil spill exceeded water pollution
standards set by the State of Arkansas and that Delek
generated, transported, and failed to properly dispose of
August 30, 2019, the United States filed a notice of consent
decree, stating that all parties to this case have entered
into a proposed consent decree. The United States also lodged
the consent decree itself in the record. (ECF Nos. 25, 25-1).
Although a detailed reproduction of the proposed consent
decree is unnecessary, the Court will provide a brief
overview of the consent decree's main provisions.
proposed consent decree requires Defendants to pay to the
United States a civil penalty of $1, 705, 460, plus interest
accruing from January 25, 2019. Defendants must also pay to
the State of Arkansas a civil penalty of $550, 000. The
consent decree also calls for Defendants to undertake
extensive injunctive measures. Defendants must perform
confirmatory sampling at specific sites. Defendants must then
design and implement a monitoring or remedial plan for any
sampled site that exhibits a possibly unacceptable human
health or ecological risk. Defendants must provide annual
spill-response training to all employees working at the
Magnolia plant, in addition to providing supplemental
training to designated first responders and conducting
training and/or planning exercises with state and local
emergency response agencies. Defendants must assemble and
place spill-response caches of materials and equipment at
their facilities. Defendants must also provide semi-annual
reports to Plaintiffs, detailing all efforts taken in the
previous semiannual period relevant to the consent decree,
along with a description of any non-compliance with the
consent decree and an explanation of the likely cause and
what remedial steps have or will be taken to remedy the
issue. The consent decree also contemplates stipulated
penalties for violations of the consent decree.
September 6, 2019, the United States published notice of the
proposed consent decree in the Federal Register for a period
of thirty days for public comment, pursuant to 28 C.F.R.
§ 50.7. On September 16, 2019, Mahony Corporation, a
non-party to this case that owns land impacted by the
Magnolia oil spill, filed a response to the parties'
proposed consent decree. (ECF No. 26).
October 30, 2019, the United States filed the instant
unopposed motion, requesting that the Court approve the
parties' proposed consent decree as fair, adequate,
reasonable, and consistent with the CWA. The United States
argues that Mahony's comment presents no reason to
disapprove of the parties' consent decree. Consequently,
the United States asks the Court to execute and enter the
proposed decree as a final judgment in this case.
entering a consent decree, this Court must find that the
settlement is procedurally fair, substantively fair,
reasonable, and consistent with [the governing
statute].” United States v. Union Elec. Co.,
934 F.Supp. 324, 327 (E.D. Mo. 1996) aff'd, 132
F.3d 422 (8th Cir. 1997). “Consent decrees should
spring from-and serve to resolve-a dispute within the
court's subject-matter jurisdiction; come within the
general scope of the case from the pleadings; and further the
objectives of the law on which the complaint was
based.” EEOC v. Prod. Fabricators, Inc., 666
F.3d 1170, 1172 (8th Cir. 2012). The Court enjoys
considerable discretion in deciding whether to approve the
parties' proposed consent decree. United States v. BP
Amoco Oil PLC, 277 F.3d 1012, 1019 (8th Cir. 2002).
the law strongly favors settlement, courts must not abdicate
their duty to adjudicate controversies before them in
accordance with the law merely because the parties have
proposed a consent decree. See Angela R. by Hesselbein v.
Clinton, 999 F.2d 320, 324 (8th Cir. 1993). Accordingly,
a court may not merely “rubber stamp” a consent
decree, but must instead “carefully consider the
underlying facts and legal arguments.” BP Amoco
Oil, 277 F.3d at 1019. “Nevertheless, where the
United States is a party to the consent decree, the court
will give due deference to the Environmental Protection
Agency's . . . inherent expertise in environmental
matters in determining whether to approve the consent
decree.” United States v. City of Waterloo,
No. 15-cv-2087-LRR, 2016 WL 254725, at *3 (N.D. Iowa Jan. 20,
2016); see also United States v. Cannons Eng'g
Corp., 899 F.2d 79, 84 (1st Cir. 1990) (“Th[e]
policy [in favor of settlements] has particular force where,
as here, a government actor committed to the protection of
the public interest has pulled the laboring oar in
constructing the proposed settlement.”).
United States asks the Court to approve the proposed consent
decree as fair, adequate, reasonable, and consistent with the
goals of the CWA. The United States also argues that the
comment received from Mahony Corporation during the public
comment period does not provide adequate reason to deny the
instant motion. The Court will address these arguments
separately before answering the ultimate question of whether
to approve the proposed consent decree.
Consistency with the Goals of the CWA
purpose of the CWA is to “restore and maintain the
chemical, physical, and biological integrity of the
Nation's waters.” Gwaltney of Smithfield, Ltd.
v. Chesapeake Bay Found., Inc., 484 U.S. 49, 52 (1987).
The United States points out that, under the consent decree,
Defendants will be required to pay civil penalties totaling
$2, 255, 460. The United States argues that these civil
penalties will serve as a punishment and will help deter
Defendants and others from future violations of the CWA. The
United States also asserts that the consent decree requires
Defendants to: (1) take steps to hasten environmental
protections at its facility; (2) monitor downstream water
quality in the impacted area; and (3) improve the safety of
its pipeline operation and ...