ELR Citation: ELR 20261
No(s). s. 89-C-868B et al (N.D. Okla. Aug 3, 1993)

The court holds that nonsettling defendants' liability to a private plaintiff under §113 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for the cleanup of a hazardous waste site is reduced by the dollar amount that settling defendants paid the plaintiffs, not by the percentage of the settling defendants' fault for the contamination. A magistrate judge had found that application of the pro tanto credit rule, which reduces nonsettlors' liability by the amount of the settlors' agreement, should apply to the case because that rule is consistent with CERCLA's purpose of minimizing litigation and encouraging settlement. The magistrate had determined that the proportionate credit rule, which would reduce the nonsettlors' liability by the amount of the settlors' fault, would be inconsistent with CERCLA's joint-and-several liability scheme and cause expense and delay. The district court notes that CERCLA mandates application of the pro tanto credit rule for administrative or judicially approved settlements involving the United States or a state. The court holds, however, that in settlements involving private parties, the courts have discretion to apply the credit rule that will best achieve CERCLA's objectives. The court holds that the pro tanto rule is superior to the proportionate rule in this instance. Adoption of the proportionate rule would substantially complicate the plaintiff's trial task by requiring it to minimize the damages caused by the settlors and maximize the damages caused by the remaining defendants, and would expose it to the risk of less than full recovery. Adopting the pro tanto approach, however, will assure the plaintiff a full recovery and apparently will not leave the nonsettling defendants with an inequitable share of the costs. The court holds that the pro tanto rule will best achieve CERCLA's objectives by encouraging settlement, simplifying trial, and equitably distributing cost.

Counsel for Plaintiff
Linda S. Peterson
Sidley & Austin
555 W. 5th St., 40th Fl., Los Angeles CA 90013
(213) 869-6000

Counsel for Defendants
Claire V. Eagan
Hall, Estill, Hardwick, Gable, Golden & Nelson
4100 Bank of Oklahoma Tower
One Williams Ctr.
Tulsa OK 74172
(918) 588-2700

William C. Anderson
Doerner, Stuart, Saunders, Daniel & Anderson
320 S. Boston Ave., Ste. 500, Tulsa OK 74103
(918) 582-1211