ELR Citation: ELR 20309
No(s). s. 94-1041, -1422 (10th Cir. Mar 17, 1995)

The court holds that a consent decree between the United States and a group of three owners of a contaminated site bars a claim asserted by another owner of the site under §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The U.S. Environmental Protection Agency (EPA) entered into a partial consent decree with two parties, and later entered into a consent decree with the group of three owners. One of the potentially responsible parties (PRPs) that was party to the first consent decree sought recovery of response costs from a PRP that was part of the group that entered into the latter decree. The court first holds that only government entities or innocent parties may bring §107 claims against PRPs, and that PRPs must settle claims between themselves pursuant to CERCLA §113(f). The court holds that the earlier settling PRP's claim against the PRP that was party to the later consent decree for costs the claimant incurred in cleaning up the site is a claim for contribution under §113(f) rather than a §107 cost recovery claim. The claimant is a PRP seeking recovery from another PRP for costs the claiming PRP incurred in excess of its proportionate share. Also, the claim is one by and between jointly and severally liable parties for an appropriate division of the payment one of them has been compelled to make. Furthermore, if PRPs were allowed to recover expenditures incurred in cleanup and remediation from other PRPs under §107's strict liability scheme, §113(f) would be rendered meaningless.

The court next holds that §113(f)(2) bars the claiming PRP's contribution claim because the claim involves matters clearly addressed in the later judicially approved consent agreement between the United States and the other PRP. The claim involves the same hazardous substances and the same site that the decree addresses. The court also holds that the potential CERCLA liability of the PRP that was party to the later decree is reduced by the amount of the claimant's settlement with the United States, not by the claimant's equitable share. Under the pro tanto rule, that potential liability is limited to unrecovered past response costs EPA incurred at the site. CERCLA's plain language mandates application of the pro tanto rule for apportionment, and its use will best achieve CERCLA's objectives by encouraging settlement, simplifying trial, and equitably distributing costs. Moreover, this interpretation of CERCLA is consistent with a majority of federal court decisions and Congress' intent.

The court holds that whether or not the PRP party to the later decree has satisfied its obligations to the United States under its consent decree does not affect contribution protection under §113(f)(2). The court holds that the district court did not err in finding the response costs that the claiming PRP incurred necessary and consistent with the national contingency plan. Finally, the court holds that the act of God and act of third-party defenses are unavailable to the later settling PRP as a matter of law. The claiming PRP's claim is for contribution under §113, and those defenses are available in limited circumstances to protect innocent parties from §107's strict liability.

[A prior decision in this litigation is published at 24 ELR 20360.]

Counsel for Plaintiff
Wayne B. Schroeder
Grimshaw & Harring
One Norwest Ctr.
1700 Lincoln St., Ste. 3800, Denver CO 80203
(303) 839-3800

Counsel for Defendant
Katherine L. Letson
Gablehouse & Epel
1050 17th St., Ste. 1730, Denver CO 80265
(303) 572-0050

* The Honorable Thomas E. Fairchild, Senior Judge, United States Court of Appelas for the Seventh Circuit, sitting by designation.

Before Anderson and Fairchild,^* JJ.