ELR Citation: ELR 20523
No(s). 83-C-2388 (D. Colo. May 13, 1985)

The court holds that contribution is available for parties found jointly liable under §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court first rules that Congress empowered the federal courts to establish a federal common law of liability under §107. The court examines the legislative history and rules that, though provisions that would have specifically provided for contribution were deleted, Congress clearly intended merely to allow the federal courts to determine the issue on a case-by-case basis instead of legislating a rigid rule.

The court next turns to a determination of the content of the federal common law of contribution. The vast majority of states recognize a right to contribution among joint tortfeasors, and the Restatement, Dean Prosser, and the Supreme Court all approve of the majority rule. Further, the majority rule is consistent with CERCLA. CERCLA preserves claims for contribution, and contribution is a logical companion to the joint and several liability that CERCLA's goal of expeditious clean up demands. Finally, all courts save one that have considered the issue have found that right to contribution exists under §107. The dissenting court erred in relying on decisions finding no right to contribution under other statutes that do not empower the courts to develop a common law of liability.

In closing, the court notes that the question whether to try the third-party claims separately is one with important consequences. Procedural implementation of defendants' right to contribution must be consistent with CERCLA's purpose of expeditious site cleanup. The court orders the parties to report back with a suggested procedure, with the possibility of certifying third-party defendants as a class.

Counsel for Plaintiff
Robert A. Hykan, Richard L.Griffith, Janice L. Burnett
Natural Resources Section
1525 Sherman St., 3d Fl., Denver CO 80203
(303) 866-3611

Counsel for Defendants
Christopher Lane, Alan Gilbert, Ronald Eddy
Sherman & Howard
633 17th St., #2900, Denver CO 80202
(303) 297-2900

Earl Madsen
Bradley, Campbell & Carney
1717 Washington, Golden CO 80401
(303) 278-3300

Peter Cosgriff
Cosgriff, Dunn & French
P.O. Box 11, Leadville CO 80461
(303) 486-1885