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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 99-20586

UNITED STATES OF AMERICA,
Plaintiff,
versus
AMOCO CHEMICAL CO.; ET AL,
Defendants,
BFI WASTE SYSTEMS OF NORTH AMERICA,
Defendant - Appellant,
MONSANTO COMPANY; ATLANTIC
RICHFIELD COMPANY,
Defendants - Appellees.

Appeals from the United States District Court
for the Southern District of Texas

May 15, 2000
Before REYNALDO G. GARZA, HIGGINBOTHAM, and BENAVIDES, Circuit
Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
BFI Waste Systems of North America ("BFI") appeals the
district court's order requiring it to execute a trust agreement
agreeing to a specific share of the remediation costs of a
Superfund site. Finding that neither an amended consent decree
between the United States and BFI nor previous trust agreements
bound BFI to sign the new trust agreement, we VACATE the district
court's order. We hold, however, that BFI is obligated by the
terms of the consent decree to enter into a trust agreement with

the other settling defendants in the action. On remand, if the
parties cannot reach an agreement as to their respective cost
allocations, the district court is empowered by the terms of the
consent decree to resolve that dispute.
I
This appeal arises out of a suit brought under the
Comprehensive Environmental Response, Compensation and Liability
Act ("CERCLA")1 in 1989 by the United States against several
defendants. The government sought remediation of the Brio
Superfund Site outside Houston, where various parties had processed
styrene tar. The defendants agreed to clean up the site, and in
1991, the district court entered the first consent decree. The
decree held the settling defendants jointly and severally liable
for remediation costs and contemplated either biological treatment
or incineration of the site. In addition, the defendants
negotiated among themselves for the share of the costs each party
would bear, memorializing this agreement in a document called the
"Brio Site Trust Agreement." The government played no role in
setting those shares.
After the defendants had begun work on an incinerator
facility, community concerns and other issues caused them to ask
the government to consider a new solution. The government studied
the matter, during which time the defendants operated under an
1See 42 U.S.C. § 9601 et seq.
2

amended interim trust agreement. When the government agreed to
containment remediation in 1997, the defendants began drafting a
new consent decree and trust fund agreement.
Although BFI participated in changing the remedy and in
working out the new consent decree, in March 1998 it stated that
its initial allocation of costs would not be acceptable for the new
project. BFI claimed that it had originally agreed to pay a higher
percentage of costs because its tar possibly contained a
contaminant that would have made incineration more costly. This
factor did not apply to a containment remedy.
BFI subsequently executed the amended consent decree but not
the trust agreement. It again advised the other parties, none of
whom had yet signed the amended consent decree, that it would not
sign the trust agreement in its current form. The other parties
nevertheless executed the amended consent decree, possibly at the
insistence of the government.
In February 1999, two of the other defendants, Monsanto
Company and Atlantic Richfield Company (collectively, "Monsanto"),
filed a motion to require BFI to sign the amended trust agreement.
The district court ordered BFI to execute the trust agreement based
on language in the amended consent decree and the court's belief
that the trust agreement had been appended to the consent decree.
After an unsuccessful motion for reconsideration, BFI appealed.
II
3

BFI's obligation to sign the amended trust agreement turns on
the terms of documents it did execute: the amended consent decree
and prior trust agreements.2 The court is empowered to enforce the
terms to which a party has agreed.3
Monsanto argues that BFI's execution of the amended consent
decree bound it to the terms of the trust agreement. This
contention relies on two provisions of the amended consent decree.
One provision requires that the settling defendants sign an amended
trust agreement:
The Settlers shall present to EPA [the Environmental
Protection Agency] for approval concurrent with this
Amended Decree a signed amended Brio Site Trust fund
which shall be amended to confer upon the Trustee all
powers and authority necessity to fulfill the obligations
of the Trustee . . . The Trust Agreement shall instruct
the Trustee to use the money in the Brio Site Trust Fund:
(1) to pay the contractor(s) for the work described in
Attachment B hereto, and (2) other proper expenses
required to be paid by the Trustee. . . .4
This language obligates BFI to sign some trust agreement but does
not lock it into any particular allocation. The government stated
that its settlement with the defendants did not address their
2BFI's argument that Monsanto has no standing to bring an
enforcement motion is without merit. A consent decree is
enforceable by those who are parties to it, see Blue Chip Stamps v.
Manor Drug Stores, 421 U.S. 723, 750 (1975), and Monsanto has
contractual rights to take its disputes concerning the decree to
the district court, see Amended Consent Decree ¶ XXII.
3See Vogel v. City of Cincinnati, 959 F.2d 594, 598 (6th Cir.
1992).
4See Amended Consent Decree ¶ XVIII.
4

shares of the costs, and the consent decree is silent on that
issue.
The second provision defines "Amended Decree" as including
those documents that the government requires the settling
defendants to generate.5 Because the government required only a
trust agreement, not the specific trust agreement at issue here,
the amended trust agreement is not made part of the amended decree.
Monsanto also contends that the 1991 trust agreement was
integrated into the amended consent decree, making its terms
binding on BFI. Monsanto points to the amended consent decree's
definition of "Settlers" as "Those persons who are signatories to
this Amended Decree . . . including the Brio Site Trust formed
pursuant to . . . the original consent decree and continued under
this Amended Decree."6 This language, however, only provides that
the members of the original Trust are included among the Settlers;
it does not specify that the members' agreements among themselves
will remain the same. In addition, prior to the signing of the
amended consent decree, the settling defendants were operating
under an interim trust agreement, not the original trust agreement.
By its own terms, the interim agreement was to terminate when the
amended consent decree was in place.7
5See Amended Consent Decree ¶ VI.A.1.
6See Amended Consent Decree ¶ VI.A.16.
7Even if the 1991 trust agreement continued to have force in
interpreting the amended consent decree, its terms did not address
5

Monsanto argues that even if the documents BFI signed did not
bind it to its original allocation, its course of dealing with the
other settling defendants did.8 Monsanto relies on United States
v. Lightman,9 another Superfund case involving an inter-defendant
dispute. There, the defendant drafted a settlement offer, and some
of the others then signed the agreement in reliance on the
defendant's position.10
Here, BFI participated in the drafting and approval of the
amended consent decree and remained silent during the first
circulations of the proposed amended trust agreement. This
behavior is distinguishable from that in Lightman. BFI made no
affirmative statements regarding the trust agreement. BFI's
initial silence did not bind it to the agreement, since silence
normally does not establish acceptance of an offer.11
More importantly, none of the parties relied on BFI's
continuing assent to its allocation share in signing the amended
consent decree. Before any of the settling defendants signed the
amended consent decree, BFI objected repeatedly and announced that
the containment remedy now contemplated.
8BFI's argument that the district court is without federal
question jurisdiction is without merit. Monsanto seeks to enforce
a consent decree settling a federal CERCLA action.
9988 F. Supp. 448 (D.N.J. 1997).
10Lightman, 988 F. Supp. at 451, 456.
11See State v. Triax Oil & Gas, Inc., 966 S.W.2d 123, 128 (Tex.
App. 1998).
6

it would not sign the trust agreement. The parties appear to have
signed the consent decree without resolving the trust agreement
problem because the government required them to, not because they
believed BFI had signed on to the allocation.12
Neither the terms of already-executed agreements nor BFI's
course of dealing with the other defendants required BFI to execute
the specific trust agreement at issue. BFI did agree in the
amended consent decree, however, to enter into some trust agreement
with its co-defendants.13 This agreement obligates it to negotiate
with the other settling defendants and agree to some system of
allocation.
On remand, if the parties are unable to reach an agreement,
the dispute resolution procedures of the amended consent decree
empower the district court to resolve the dispute. The amended
consent decree's dispute resolution clause allows the district
court to resolve "any disputed issue" arising out of the decree,14
a decree whose scope includes the creation of a trust agreement.15
12We are also not persuaded that the district court had the
authority to amend the consent decree and impose the terms of the
amended trust agreement. Although the court enjoys an equitable
power to modify decrees to respond to changes in the law or facts,
see System Federation No. 91 v. Wright, 81 S. Ct. 368, 371 (1961),
no such relevant change occurred here to justify the amendment
Monsanto desires.
13See Amended Consent Decree ¶ XVIII.
14See Amended Consent Decree ¶ XXII.E.
15See Amended Consent Decree ¶¶ XVIII & VI.A.1 (defining the
amended decree as including "those documents that EPA requires
7

Having assented to the amended consent decree, BFI is obligated to
continue its participation in the Brio trust, not to withdraw
based on its hindsight that its liability may have been less than
it estimated in 1991.
VACATED AND REMANDED.
Settlers to generate. . . .").
8