Public Serv. Co. of Colo. v. Gates Rubber Co.
Citation: 29 ELR 21091
No. 98-1015, 175 F.3d 1177/(10th Cir., 04/26/1999)
The court holds that a company's cleanup of a polychlorinated biphenyl- and lead-contaminated site in Colorado was not consistent with the national contingency plan (NCP). Thus, the company is not entitled to contribution from other responsible parties. The court first holds that the district court did not err in concluding that the response action that the company took at the site was a remedial action that triggered the more detailed requirements of the NCP. The company intended to remediate the site to sell it and recoup its cleanup costs. That is, the company intended to effect a permanent remedy. Although the company removed and excavated soils and buried storage drums, neither of those acts alone nor their particular labeling transforms the cleanup into a removal action.
The court next holds that the state's involvement in the cleanup of the site did not render the cleanup consistent with the NCP. Although the state, acting through its environmental agency, disapproved of some of the techniques used to neutralize contaminated soils and required the company to ship contaminated substances to a different facility, the state was never involved in assessing the site, proposing alternative remedies, overseeing the remedy, or involving the surrounding community. Further, according to the record, the state was concerned with compliance with state requirements that do not fully mirror those of the NCP.
Counsel for Plaintiff
Kathryn A. Elzi
Koncilja & Associates
800 18th St., Ste. 300, Denver CO 80202
Counsel for Defendants
Thomas C. Reeve
Bennington, Johnson & Reeve
2480 Republic Plaza
370 17th St., Denver CO 80202
Before McKay and Briscoe, JJ.