ELR Citation: ELR 20489
No(s). 92-3858 (8th Cir. Jan 12, 1994)

The court holds that a de minimis settlement agreement among the U.S. Environmental Protection Agency and owners and lessors of property within a contaminated site bars a contribution action brought by a nonsettling party under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) after the settlors entered into the agreement but before they completed performance of their obligations. Congress clearly and repeatedly expressed its desire to minimize litigation by granting de minimis potentially responsible parties protection from contribution actions as soon as possible. The settlement agreement in this case incorporates this mandate. The fact that the agreement includes the words "will have resolved their liability" after the words "by entering into and carrying out the terms of this Consent Order," indicates that the settlors are protected from contribution actions on signing the agreement and will be protected so long as they comply with the agreement.

Turning to the nonsettlor's arguments that the district court erroneously granted the settlors' motions to stay discovery, thus preventing the nonsettlor from showingthat the settlors were not entitled to a de minimis agreement, the court holds that a federal court lacks jurisdiction over a nonsettlor's challenge to the eligibility of settlors to enter into a de minimis settlement agreement embodied in an administrative order. Congress expressly precluded judicial review of executive branch decisions to use the settlement procedures of CERCLA §122. The objective of CERCLA's settlement provisions is to allow expedient and efficient settlements of potential liability. This does not leave nonsettling parties without recourse, because they may participate in the formation of administrative de minimis agreements. The court holds that the district court properly denied the nonsettlor an opportunity to conduct further discovery on whether the defendants had performed their obligations under the de minimis agreement, because the nonsettlor cannot obtain rescission of the agreement in this litigation. Any information concerning whether the settlors remain in compliance with the agreement is irrelevant.

[The district court's opinion is published at 23 ELR 20317.]

Counsel for Appellant
Joseph W. Klein
Reed, Smith, Shaw & McClay
435 6th Ave., Pittsburgh PA 15219
(412) 288-3131

Counsel for Appellees
Robert M. Zuber
2120 72d St., Ste. 646, Omaha NE 68124
(402) 397-1161

Paul Elofson
McGill, Gotsdiner, Workman & Lepp
First National Plaza
11404 W. Dodge Rd., Ste. 500, Omaha NE 68154
(402) 492-9200

Hansen, J. (before Arnold and McMillian, JJ.):