ELR Citation: ELR 21581
No(s). 95-71291 (E.D. Mich. Jun 18, 1996)

The court denies a motion to enter a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) consent decree between Michigan and a potentially responsible party (PRP) at the Metamora Landfill site that would protect the PRP from CERCLA §113(f) contribution claims relating to "matters addressed" in the decree, defined as all past and future response costs incurred by the state or any other party. The court first holds that the definition of "covered matters" in the decree's provision regarding Michigan's covenant not to sue does not limit the definition of "matters addressed" in the contribution protection provision. The latter provision is inserted for the purpose of determining the scope of contribution protection, whereas the "covered matters" definition establishes only the subject matter on which the state covenants not to sue. Addressing the decree's fairness, the court notes that the definition of matters addressed, if taken at face value, potentially gives the PRP complete finality with respect to all of its site cleanup liability, which the state has estimated at $646,000. Because it appears that the $35,000 figure suggested for settlement was not arrived at by a rough attempt at apportionment of fault, the court refuses to approve the decree. The court next holds that the use of the U.S. Environmental Protection Agency volumetric estimate of the fraction of the waste attributable to the PRP is a reasonable method of apportioning fault. The court also holds that withholding approval of the consent decree would not thwart CERCLA's objectives. The state need not offer a PRP total immunity from liability in order to offer the measure of finality contemplated in §113(f)(2). At the same time, the policy in favor of a roughly equitable apportionment of costs according to fault is preserved by limiting contribution protection to those costs the state has incurred.

Counsel for Plaintiffs
Mary S. Rigdon, Ass't U.S. Attorney
U.S. Attorney's Office
211 W. Fort St., Ste. 2300, Detroit MI 48226
(313) 226-9100

Counsel for Defendants
Gary R. Letcher
The Harker Firm
5301 Wisconsin Ave. NW, Ste. 740, Washington DC 20015
(202) 966-7900