2. Settlors’ Settlement Agreements, attached as Exhibit A, are approved, and the
terms and conditions of the Settlement Agreements are hereby incorporated by reference into this
Order as if fully restated herein.

3. Except for the exceptions stated in the Settlement Agreements, all claims asserted,
to be asserted, or which could be asserted against Defendants by persons who are defendants or
third-party defendants in this case (whether by cross-claim or otherwise) or by any other person
or entity (except the U.S. Environmental Protection Agency (“U.S. EPA”), the United States
acting on U.S, EPA’s behalf, the Ohio Environmental Protection Agency (“Ohio EPA”), and the
State of Ohio acting on Ohio EPA’s behalf) in connection with the presence, generation,
transportation, storage, treatment, disposal, abandonment, release, threatened release, removal,
remediation, monitoring, or engineering control of electronic waste at, to or migrating from
Garrison’s properties located at 1655 and 1675 Watkins Road in Columbus, Ohio and Olymbec’s
property located at 2200 Fairwood Avenue in Columbus, Ohio under Sections 107 or 113 of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended,
42 U.S.C. § 9607 and § 9613, and/or any other federal, state or local statute, regulation, rule,
ordinance, law, contract, common law, or any other legal theory are hereby discharged, barred,
permanently enjoined, dismissed with prejudice, satisfied, and are otherwise unenforceable in
this case or in any other proceeding.

4. The payments by Defendants to Plaintiffs shall be credited pro tanto, and not pro
rata, during any equitable allocation of response costs among liable parties by the Court in this
matter pursuant to 42 U.S.C. § 9613(f)(1). The liability of the remaining liable parties shall
accordingly be reduced by the dollar amount of Defendants’ settlement payments, and the Court

need not determine Defendants’ proportionate share of liability.

14


Settlors, the potential legal fees and costs if settlement does not occur, and past and projected
future remediation costs.” (/d.) (citing Heisler Decl. { 13; Womack Decl. { 13).

Accordingly, the Court finds that the proposed settlements were negotiated at arm’s
length and in good faith. The procedural fairness prong of the CERCLA settlement analysis is
satisfied.

B. Substantive Fairness

As noted by the United States Supreme Court in Key Tronic Corp., “two of the main
purposes of CERCLA [are to] prompt cleanup of hazardous waste sites and [the] imposition of
all cleanup costs on the responsible party.” 511 U.S. 809, 815 n.6 (1994) (quoting Gen. Elec.
Co. v. Litton Indus. Automation Sys., Inc., 920 F.2d 1415, 1422 (8th Cir. 1990) (abrogated on
other grounds)). Thus, the Court considers whether Settlors’ proposed settlement agreements are
fair, reasonable, and consistent with these purposes.

In their Memorandum in Response, the Kuusakoski Defendants state they “do not object
to the proposed settlements, assuming that the Kuusakoski [D]efendants reserve ail rights and
that the current proposed settlements do not establish a precedent that later settlements must
contain the same settlement terms or utilize the same settlement formula.” (17-cv-783, Mem. in
Resp. at 2, ECF No. 354). In other words, “[wJhile the Kuusakoski Defendants do not object to
these proposed settlements, given the early stage of this litigation, these defendants cannot judge
and therefore do not agree that the settlements are ‘fair[], reasonable[] and consisten[t] with the
[CERCLA] statute.” (/d. at 1).

First, the Kuusakoski Defendants argue “[n]o discovery has been taken by any party.”
(Id.). Accordingly, the Kuusakoski Defendants claim the “proposed settlements are based on

Plaintiffs’ allegations of the relative volume of material sent to the sites by each settlor.” (/d. at


according to volumetric contribution. And, to the extent they deviate from this formulaic

approach, they do so on the basis of adequate justification”); see also United States v. Rohm &

Haas Co., 721 F. Supp. 666, 687 (D. N.J. 1989) (“[t]he volumetric share and concomitant dollar

sum which underlie this settlement do, it seems to [the court], reside comfortably within the
lausible parameters of those settlors’ potential equitable liability, be it high or low”).

Moreover, the fact that the Settlors’ liability apportionments are imprecise estimates is
not dispositive. See Responsible Envil., 2011 WL 382617, at *2; see also Rohm, 721 F. Supp. at
685 (“[w]e need not determine if the settlement precisely reflects what we feel to be the settlors’
most likely volumetric share of the waste dumped at [the plaintiff's property]. Such a finding
would be akin to that made at trial and would involve no savings in terms of judicial or
enforcement resources”), Finally, the Kuusakoski Defendants’ argument that the Plaintiffs’
methodology fails to consider owner, operator, or transporter shares is not well taken. As this
Court noted in Responsible Environmental, “the Court is not determining whether such liability
can be imposed upon any one [PRP] or more or all of them. Rather, the Court is assessing
whether the Plaintiff's position that such liability [can or] cannot be imposed is objectively
reasonable.” 2011 WL 382617, at *3.

Settlors explain that Plaintiffs should bear a reduced liability apportionment because: (1)
they have not benefitted from any clean-up efforts; (2) they did not have exclusive access to the
affected properties; and (3) they are funding this litigation, as well as ongoing negotiations.
Similarly, Settlors offer a reasonable explanation as to the absence of operator or transporter
liability. If operator Defendant Closed Loop and its operator subsidiaries are defunct, Plaintiffs
cannot recover from them. Furthermore, Plaintiff plausibly indicates that it is not aware of any

transporter Defendants who selected Plaintiffs’ properties for e-waste disposal. Thus, Plaintiff

10


acknowledge that no formal discovery has taken place, they submit that settlement discussions
began nearly two years ago. (Id.).

During the past two years Settlors maintain that: (1) they often exchanged weekly emails
and telephone calls with the Kuusakoski and Joinder Defendants; (2) collectively discussed
“environmental cleanup estimates, the proposed approach for environmental cleanup, related
litigation, ongoing negotiations with the Ohio Attorney General’s Office, . . . and the terms and
conditions of a potential settlement[;]” (3) produced thousands of pages of records to the
Kuusakoski Defendants; and (4) permitted the Kuusakoski Defendants to conduct “multiple site
visits a the Plaintiffs’ properties . . . [to observe] firsthand perhaps the most critical ‘evidence’ in
this case.” (Jd. at 6-7). Settlors assert that the same records and information was provided to
all Joinder Defendants, with the exception of Defendants Accurate IT Services Ltd.,
Environmental Coordination Services & Recycling, Inc., and the Waste Commission of Scott
County, Iowa, who declined invitations to negotiate in September 2017. (Jd. at 7).

Settlors also contend “there is no basis for the assertion that the proposed settlement
agreements and the settlement strategy disregard Plaintiffs’ liability.” (Reply at 10). Settlors
argue that Plaintiffs are potentially liable for a portion of the “orphan share” of PRPs who have
declared bankruptcy. (/d.). Moreover, Settlors aver that Plaintiffs have: (1) funded the litigation,
(2) funded the acquisition of Defendant Closed Loop’s records, (3) born the costs of drafting and
negotiating the settlement agreements, and (4) have suffered significant financial losses from

Defendants’ operations, justifying a lower allocation of liability. (Id. at 10-11)."

' Settlors distinguish the current facts from Carolina Pines I, LLC v. City of Abbeville Pub. Works, No.
142-3:16-cv-01124-TLW (D.S.C. Nov. 14, 2018), a case cited by Defendants. In Carolina Pines, the
District of South Carolina found that the defendants’ CERCLA response cost allocation should be
reduced by 60% based on the plaintiffs own liability. Jd. at 26. However, unlike the facts before the
Court, Settlors note that the Carolina Pines property owner had exclusive access to the property and
“ultimately benefitted from the timely clean up of the e-waste” when it sold the affected warehouse. Jd. at

7


3) (emphasis in original). Second, the Kuusakoski Defendants point out that the proposed
settlements are “likely more than the proportionate liability of those settlors because Plaintiffs’
settlement methodology fails to consider the owner, operator, or transporter shares.” (Id. at 4-5).
Specifically, the Kuusakoski Defendants argue the proposed formula disregards “the owner (i.e.,
plaintiff) share.” (Jd. at 5). In the Kuusakoski Defendants’ view, the proposed settlement
formula incorrectly “has the settling arranger parties (only one of the four CERCLA categories
of potentially responsible parties) splitting up 100 percent of the remediation costs as opposed to
splitting only the ‘arranger share’ of the remediation costs.” (Jd.).

Third, the Kuusakoski Defendants maintain that other terms of the proposed settlements
“should not be assumed fair or precedential.” (/d. at 7). According to the Kuusakoski
Defendants the scope of protection offered to Settlors may be insufficient because “the
settlement agreements are not contingent on the settling parties receiving CERCLA § 122(f)
covenant not to sue protection.” (/d.). The Kuusakoski Defendants further contend that it “is too
early, and unnecessary, to decide on a blanket application of [a pro tanto] approach [to the
allocation of settlement proceeds.]” (Jd. at 7-8).

Settlors contend that the proposed settlements are substantively fair. (Joint Mot. at 7).
According to Settlors, “each Settlor has agreed to pay a percentage of the total cleanup costs
equivalent to the percentage of the E-Waste attributed to the Settlor.” (Jd. at 8). In addition,
Settlors note that the proposed agreements “contain reopeners that allow Plaintiffs to seek
additional costs from each Settlor if new evidence reveals that the amount of Settlor’s E-Waste
generates cleanup costs that are substantially higher than the amount of E-Waste currently
attributed to Settlor.” (/d.). Settlors also reject the Kuusakoski Defendants’ argument that the

proposed settlements are based on mere allegations. (Reply at 6-8). Although Settlors


liability is fair and reasonable. For one, Settlors provide affidavits from Karl Heisler and
Randall Womack, the attorneys representing Garrison and Olymbec in this matter. (Heisler
Decl. § 2-3; Womack Decl. 2-3). Both Mr. Heisler and Mr. Womack testified as follows:

Plaintiffs are using a straightforward cost recovery formula in settlement

negotiations that allocates a percentage of the remediation costs to each PRP

based on records that identify the total weight of E-Waste that the PRP shipped to

the Facility, as compared to the total weight of the E-Waste shipped by all PRPs.

Plaintiffs then applied this percentage to the estimated combined cleanup costs of

$18,371,174.98. Using this formula, Plaintiffs have calculated each Settlor’s fair

share for settlement purposes to be the Settlement Amount listed in Appendix A

to the Settlement Agreements, and each Settlor has agreed to pay this amount.

(Heisler Decl. ¥ 11; Womack Decl. { 11) (footnote omitted).

In addition, both Mr. Heisler and Mr. Womack represent that all PRPs were invited “to
negotiate settlements to pay for the removal and remediation of the E-Waste that they
contributed to the Facility, except for bankrupt, dissolved, or defunct PRPs and PRPs that sent a
de minimus amount of E-Waste that will cost no more than $6000 to remediate.” (Heisler Decl.
§ 12; Womack Decl. { 12). Mark Granger, counsel for settling Defendant Arrow Recovery
Group, testified that when negotiating the proposed settlement agreement, “Settlor considered its
potential liability, the evidence tying Settlor to Plaintiffs’ warehouses, Settlor’s defenses, the
potential legal fees and costs if settlement were not reached, and past and projected future
cleanup costs for Plaintiffs’ warehouses.” (Granger Decl. { 6, ECF No. 308-5).

Examining these facts, the Court finds that Settlors rationally apportioned liability in their
proposed settlement agreements. The percentage of liability attributed to each PRP is based on
information currently available to the parties, i.e., the total weight of E-Waste that each PRP
shipped to Plaintiffs’ properties. Other courts have upheld this volumetric approach as
reasonable. See Cannons Eng’g, 899 F.2d at 88 (“[Settlors] adhere generally to principles of

comparative fault according to a volumetric standard, determining the liability of each PRP


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION
GARRISON SOUTHFIELD
PARK LLC,
Plaintiff, Case No. 2:17-cy-783
CHIEF JUDGE EDMUND A. SARGUS, JR.
v. Magistrate Judge Elizabeth P. Deavers
CLOSED LOOP REFINING
AND RECOVERY, INC., et al.,
Defendants.
OLYMBEC USA LLC,
Plaintiff, Case No. 2:19-cv-1041
CHIEF JUDGE EDMUND A. SARGUS, JR.
y. Magistrate Judge Elizabeth P. Deavers
CLOSED LOOP REFINING
AND RECOVERY, INC., et al.,
Defendants.

OPINION AND ORDER

This matter is before the Court on the Joint Motion for Approval of Settlement
Agreements Executed by Plaintiff Garrison Southfield Park LLC (“Garrison”), Plaintiff Olymbec
USA LLC (“Olymbec,” along with Garrison referred to as “Plaintiffs”), and Defendants e-Lot
Electronics Recycling, LLC, eRevival LLC, and eWorks Electronics Services, Inc. (“Settlors”).
(17-cv-783, ECF No. 337; 19-cv-1041, ECF No. 259). Also before the Court is Defendant
Waste Commission of Scott County, lowa’s (“Defendant Scott County”) Motion for Joinder in
the Kuusakoski Defendants’ Request for Clarification of the Process for Approval of Future

Settlements. (17-cv-783, ECF No. 344; 19-cv-1041, ECF No. 263). In addition, the Court will


In contrast, the pro tanto approach, embodied in the Uniform Contribution Among

Tortfeasors Act (“UCATA”), reduces the plaintiffs’ claims against the non-

settling defendants by the dollar value of the settlement. Under this scenario, if

the plaintiffs settle for too little, all non-settling PRPs bear the risk of being liable

for more than their fair share of the response costs.

Hobart, No. 3:13-cv-115, at *2—*3 (Exhibit F).

The Hobart court noted the pro tanto approach facilitates the purposes of CERCLA
because it “encourages early settlement by ‘placing the risk of lenient settlements on PRP
holdouts,’ who know that they may be called upon to make up any shortfall.” Jd. at 5 (quoting
Action Mfg. Co., Inc. v. Simon Wrecking Co., 428 F. Supp. 2d 288, 326 (E.D. Pa. 23006). In
addition the Hobart court pointed out that the pro tanto approach “encourages private
remediation of hazardous waste sites, because private parties who undertake clean-up efforts are
more likely to be able to completely recoup their response costs.” /d. Finally, the Hobart court
stated that a pro rata or proportionate share analysis can be a very “complex and unproductive
inquiry and may be unrealistic in situations where waste was deposited by hundreds of polluters
for years, if not decades, prior to the litigation.” Jd. at 7 (quoting American Cyanamid Co. v.
Capuano, 381 F.3d 6, 20 (1st Cir, 2004) (internal quotations omitted).

As the Court understands the Kuusakoski Defendants’ position, they and the Joinder
Defendants do not oppose the application of a pro tanto method in the proposed settlement
agreements presently before the Court. However, the Kuusakoski Defendants request the right to
object to any future applications of the pro tanto approach. (Reply at 7-8). At this stage in the
litigation, the Court need not decide on a blanket application of a pro rata or pro tanto approach.
When future settlors would like to apply a specific methodology, they are free to submit that

proposal to the Court. Likewise, the Kuusakoski Defendants are free to object in accordance

with the Court’s July 23, 2019 Order. (17-cv-783, ECF No. 341). However, the Court notes that

12


reasonably contends there are no transporter defendants pursuant to CERCLA § 107(a)(4).?
Consequently, the Court concludes Settlors’ liability allocation in the proposed settlement
agreements is fair and reasonable.

2. Are the Proposed Terms Inconsistent with the Purposes of CERCLA?

The Court finds Settlors’ proposed terms consistent with the purposes of CERCLA. As
noted supra, Congress enacted CERCLA in order to effectuate the “prompt cleanup of hazardous
waste sites and [the] imposition of all cleanup costs on the responsible party.” Key Tronic, 511
USS. at 815 n.6. First, the Court agrees with Settlors that CERCLA § 122(f), or 42 U.S.C. §
9622(f), does not apply to settlement agreements between private parties. The statute states that:
“(t]he President may, in his discretion, provide any person with a covenant not to sue concerning
any liability to the United States under this chapter, including future liability.” 42 U.S.C. §
9622(f). Here, Settlors are all private parties. Moreover, even if this instant action involved the
United States, nothing in § 122(f) requires the imposition of a covenant not to sue.

Second, this Court has previously upheld CERCLA settlement agreements utilizing a pro
tanto approach. Hobart, No. 3:13-cv-115, at *12 (Exhibit F). In Hobart, this Court explained
the pro rata and pro tanto methodologies as follows:

The [pro rata] approach, embodied in the Uniform Comparative Fault Act

(“UCFA”), reduces the plaintiffs’ claims against the non-settling defendants by

the amount of the settling defendant’s proportionate share of fault, as later

determined at trial. Because the non-settling defendants are held responsible for

their own proportional share, the plaintiffs must absorb any shortfall if they settle

for too little. AmeriPride Servs. Inc. v. Texas Eastern Overseas Inc., 782 F.3d
474, 483-84 (9th Cir. 2015).

? CERCLA § 107(a)(4), or 42 U.S.C. § 9607(a)(4), defines “transporter” as follows:

any person who accepts or accepted any hazardous substances for transport to disposal or
treatment facilities, incineration vessels or sites selected by such person, from which
there is a release, or a threatened release which causes the incurrence of response costs,
of a hazardous substance, shall be liable for—

11


Settlors further contend they: (1) cannot account for operator liability because
‘Defendant Closed Loop is defunct and all three of its principals declared bankruptcy[;]” and (2)
are not aware of any transporters that “‘selected’ Plaintiffs’ properties as the site for treatment or
disposal, in keeping with the requirements for transporter liability [under] CERCLA.” (Jd. at
12-13). Finally, Settlors maintain that the “settlement terms are fair and warrant precedential
consideration.” (/d. at 13). First, Settlors argue that “the Kuusakoski Defendants have no
standing to complain about the scope of contribution protection provided to other PRPs.” (Jd. at
14). In their view, a settlement agreement can be fair, reasonable, and consistent with the
purposes of CERCLA in the absence of a covenant not to sue under CERCLA § 122(f). (Jd).
Second, Settlors argue that this Court has previously found “the pro tanto approach is more
conducive to achieving CERCLA’s goals of early settlement and private remediation of
hazardous waste sites.” (/d.) (quoting Hobart Corp. v. Dayton Power & Light Co., No. 3:13-cv-
115 (S.D. Ohio Apr. 18, 2016)) (Exhibit F, ECF No. 337-7). Thus, Settlors aver their proposed
settlements should be upheld as substantively fair. (Joint Mot. at 7).

1. Is the Apportionment of Liability Fair and Reasonable?

Settlors’ arguments are well taken. When reviewing the Settlors’ proposed settlement
agreements under the arbitrary and capricious standard, the Court need only consider whether
there is “some acceptable measure of comparative fault, apportioning liability among the settling
parties according to rational (if necessarily imprecise) estimates of how much harm each PRP
has done.” Responsible Envtl., 2011 WL 382617, at *2 (quoting Cannons Eng’g Corp., 899 F.2d

at 87). Here, Settlors present sufficient evidence to suggest their proposed apportionment of

24. Here, Settlors argue the Ohio Environmental Protection Agency (“EPA”) routinely inspected the
property. (Reply at 11). In addition, Settlors point out that Plaintiffs have suffered severe financial losses

from Defendants’ operations. (/d.).


Il.
A. Procedural Fairness

With respect to procedural fairness, “[t]here is a strong presumption in favor of voluntary
settlements in CERCLA litigation.” United States v. 3M Co., No. 3:14-cv-32, 2014 WL
1872914, at *5 (S.D. Ohio May 8, 2014) (citing Akzo Coatings, 949 F.2d at 1436). “To measure
procedural fairness, a court should ordinarily look to the negotiation process and attempt to
gauge its candor, openness, and bargaining balance.” Jd. at *3 (quoting Cannons Eng’g Corp.,
899 F.2d at 86). For instance, “[p]rocedural fairness requires that settlement negotiations take
place at arm’s length.” Jd. (quoting Jn re Tutu Water Wells CERCLA Litigation, 326 F.3d 201,
207 (3d Cir. 2003)). In addition, the “Court must determine that the negotiators bargained in
good faith.” Cantrell, 92 F. Supp. 2d at 724.

The Kuusakoski Defendants and Joinder Defendants do not contest the procedural
fairness of the proposed settlements. (See generally Mem. in Resp.). Moreover, Settlors provide
numerous facts to indicate the procedural fairness of the negotiation process. First, Settlors
represent that “Plaintiffs’ counsel have, by letter, electronic mail, and/or telephone, invited all of
these [potentially responsible parties (“PRP”)] to negotiate settlements to pay for the removal
and remediation of the [E-Waste] that they contributed to the Facility.” (Joint Mot. at 6) (citing
17-cv-783, Heisler Decl. ¥ 12, ECF No. 308-3; 17-cv-783, Womack Decl. J 12, ECF No. 308-4).
In addition, Settlors state that all parties to the proposed settlement agreements were represented
by independent counsel during negotiations. (Id. at 7) (citing Womack Decl. q 13; Defendants’
Decl. § 5). Finally, Settlors point out that the negotiations included “evaluations of Settlors’

potential liability, the evidence tying Settlors to Plaintiffs’ Facility, the defenses asserted by


5. Defendants are dismissed from this lawsuit.
6. Pursuant to the authority contained in Kokkonen v. Guardian Life Ins. Co. of
America, 511 U.S. 375 (1994), this Court hereby retains jurisdiction and shall retain jurisdiction
after entry of final judgment in this case to enforce the terms and conditions of the Settlement
Agreements.
Iv.

The Court issued an Order in response to the Kuusakoski Defendants’ Request for
Clarification of Process for Approval of Future Settlements (17-cv-783, ECF No. 328) on July
23, 2019. (17-cv-783, ECF No. 341). Accordingly, Scott County’s Motion for Joinder in the
Kuusakoski Defendants’ Request is DISMISSED as moot. (17-cv-783, ECF No. 344; 19-cv-
1041, ECF No. 263).

Vv.

For the reasons stated above, Settlors’ Joint Motion for Approval of Settlement
Agreements is GRANTED (17-cv-783, ECF No. 337; 19-cv-1041, ECF No. 259); Defendant
Scott County’s Motion for Joinder is DISMISSED as moot (17-cv-783, ECF No. 344; 19-cv-
1041, ECF No. 263); and the Motions for Joinder in support of the Kuusakoski Defendants are
GRANTED. (17-cv-783, ECF Nos. 355, 356, 359, 360, 368; 19-cv-1041, ECF Nos. 274, 275,
277, 278, 298). The Clerk is DIRECTED to remove Defendants E-Lot Electronics Recycling,
LLC; eRevival LLC; and eWorks Electronics Services, Inc. from Case No. 17-cv-783 and Case

No. 19-cv-1041.

IT IS SO ORDERED.
$>M~Lol4
DATE EDMURD)A. SARGUS, JR.
CHIE! ITED STATES DISTRICT JUDGE

15S


ECF No. 354; 19-cv-1041, ECF No. 273). Several other Defendants (“Joinder Defendants”)
subsequently joined in the Memorandum filed by the Kuusakoski Defendants. (17-cv-783, ECF
Nos. 355, 356, 358, 359, 360, 368, 373; 19-CV-1041, ECF Nos. 274, 275, 276, 277, 278, 298,
303). Plaintiffs replied on August 12, 2019. (17-cv-783, ECF No. 394; 19-cv-1041, ECF No.
309). Accordingly, the Joint Motion is ripe for review.

I.

“The general policy of the law is to support voluntary settlements.” United States v.
Cantrell, 92 F. Supp. 2d 718, 723 (S.D. Ohio 2000). In determining whether to approve a
proposed settlement under CERCLA, the Court must determine whether it is “fair, reasonable
and adequate[,] in other words, consistent with the purposes that CERCLA is intended to serve.”
Responsible Envtl. Sol. All. v. Waste Mgmt, Inc., No. 3:04-cv-013, 2011 WL 382617, at *2 (S.D.
Ohio Feb. 3, 2011) (quoting United States v. Akzo Coatings of America, Inc., 949 F.2d 1409,
1435 (6th Cir. 1989). See also United States v. Cannons Eng’g Corp., 899 F.2d 79, 85 (1st Cir.
1990) (“the trial court’s review function is only to satisfy itself that the settlement is reasonable,
fair and consistent with the purposes that CERCLA is intended to serve”).

“In Akzo Coatings, the Sixth Circuit stressed that in determining whether settlement is
fair, reasonable and consistent with the purposes of CERCLA, the District Court must apply an
arbitrary and capricious standard.” Responsible Envtl., 2011 WL 382617, at *2 (citing Akzo
Coatings, 949 F.2d at 1426-1426). Thus, a CERCLA settlement “must be both procedurally and
substantively fair.” Jd. (citing Cannons Eng’g Corp., 899 F.2d at 86). It is not the court’s
“function to determine whether [a settlement] is the best possible settlement that could have been

obtained.” Akzo Coatings, 949 F.2d at 1436.


tule on all Motions for Joinder in Support of the Kuusakoski Defendants’ Memorandum in
Opposition to Settlors’ Joint Motion. (17-cv-783, ECF Nos. 355, 356, 359, 360, 368; 19-cv-
1041, ECF Nos. 274, 275, 277, 278, 298).

For the reasons that follow, the Joint Motion is GRANTED (17-cv-783, ECF No. 337;
19-cv-1041, ECF No. 259); Defendant Scott County’s Motion for Joinder is DISMISSED as
moot (17-cv-783, ECF No. 344; 19-cv-1041, ECF No. 263); and the Motions for Joinder in
support of the Kuusakoski Defendants are GRANTED. (17-cv-783, ECF Nos. 355, 356, 359,
360, 368; 19-cv-1041, ECF Nos. 274, 275, 277, 278, 298).

L

These related cases arise under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (“CERCLA”). (See generally First Am. Compl.).
Plaintiffs allege that Defendants “collaborated in an elaborate sham recycling scheme that
extended across the country to profit from the stockpiling and subsequent abandonment of more
than 64,000 tons (128 million pounds) of hazardous electronic waste (“E-Waste”).” (First Am.
Compl. { 2). According to Plaintiffs, “the costs of removing and/or remediating nearly 10 acres
of hazardous e-waste at [Plaintiffs’ properties] . . . will exceed $14.2 million.” (/d.). Thus,
Plaintiffs seek “declaratory relief, cost recovery, and common law damages resulting from
environmental contamination caused by Defendant Closed Loop, Defendant Silagi, and the
Arranger/Transporter Defendants at two contiguous warehouses owned by [Plaintiffs] and
located at 1655 and 1675 Watkins Road, Columbus, Ohio 43207.” (Id. § 1).

Settlors filed their Joint Motion for Approval of Settlement Agreements on July 23, 2019.
(17-cv-783, ECF No. 337-1; 19-cv-1041, ECF No. 259). On August 1, 2019, the Kuusakoski

Defendants filed a Memorandum in Response to the proposed settlement agreement. (17-cv-783,


its decision in this instance will weigh in favor or against the application of a pro tanto approach
in future settlement agreements. In AmeriPride, the Ninth Circuit stated that:

Choosing a method that would discourage settlement or produce plainly

inequitable results could constitute an abuse of discretion . . . Because a district

court’s chosen method will likely affect parties’ decisions to settle or contest a

proposed settlement, once a district court selects a method in a final order

approving a settlement agreement, failing to follow that approach may produce a

result that is inequitable and inconsistent with CERCLA’s goals.

AmeriPride, 782 F.3d at 488.

The Court finds the application of the pro tanto approach in these particular settlement
agreements is consistent with the purposes of CERCLA. Of the original 52 Defendants in the
Garrison litigation (17-cv-783), only a handful have settled. A pro tanto methodology will
encourage faster settlements, and a faster clean-up of the e-waste, by shifting the financial risks
of an overly lenient settlement to the non-settling Defendants. In addition, a pro rata analysis
may be unrealistic under the present circumstances. Although the Garrison litigation has been
pending since September 2017, the Olymbec litigation began in March 2019. Discovery is not
complete in either case. In fact, the Court only consolidated the cases for fact discovery on May
29, 2019. (ECF No. 119). Although Plaintiffs do not allege that Defendants have mishandled e-
waste for decades like the defendants American Cyanamid, they do allege that misconduct
extends back to 2014. (19-cv-1041, Compl. {3). Accordingly, any attempt to conduct a pro rata
analysis at this time could yield significant inaccuracies.

Because the Court finds the contested terms of the proposed settlement agreements, i.e.,
the allocation of liability, absence of a covenant not to sue, and application of pro tanto, are fair,
reasonable, and consistent with the purposes of CERCLA, the proposed agreements are

substantively fair. Accordingly, the Court finds the following:

1. Settlors’ Joint Motion is GRANTED.

13