ELR Citation: ELR 20894
No(s). s. 83-C-2388, 86-C-1675 (D. Colo. Jan 27, 1993)

The court enters a partial consent decree under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) between the United States and a defendant at the California Gulch Superfund site near Leadville, Colorado, providing for a cash settlement to resolve the government's CERCLA §107(a) claims, and holds that other nonsettling defendants' CERCLA §107 cost recovery claims against the settling defendant are effectively contribution actions barred by the contribution protection provisions of the consent decree. The nonsettling defendants argued that their claims were independent cost recovery actions under §107, and therefore not subject to the contribution protection contained in the partial consent decree, and that the government made the settlement under its inherent authority, which does not allow for contribution protection. The court holds that where parties are jointly and severally liable under CERCLA, response costs can only be shifted by one party to another by way of contribution. That the nonsettling defendants have incurred response costs does not alter the substance of their claims to enable them to void the contribution protection provided to the settling defendant by CERCLA §113(f)(2). CERCLA §113(f) expressly recognizes a right of contribution, but the right itself is created by §107(a). Interpreting the nonsettling PRPs' "independent" cost recovery actions as claims in contribution is consistent with Congress' intent that Superfund sites be cleaned up expeditiously and fairly. To adopt the nonsettling defendants' interpretation would severely undermine the effectiveness of §113(f)(2), and there would be far less incentive for parties wishing to settle to do so expeditiously. Unless a party like the settling defendant in this case can receive reasonable assurance that its settlement payment will buy a peace with finality, it may see little advantage in early settlement. Absent the contribution claim protection provided by Congress, one recalcitrant party might be able to hinder and delay indefinitely the settlement efforts of other parties. Finally, the court holds that the government's inherent authority to enter into cash settlements is not limited by CERCLA §122's failure to mention cash settlements, and the government properly extended §113(f)(2) contribution protection to the settling PRP in the consent decree.

Counsel for Plaintiff
William Pharo
1961 Stout St., Denver CO 80294
(303) 294-1300

Counsel for Defendant
Earl Madsen
Bradley, Campbell, Carner & Madsen
1717 Washington Ave., Golden CO 80401
(303) 278-3300