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United States v. Conservation Chem. Co.

Citation: 17 ELR 20158
No. No. 82-0983-CV-W-5, 628 F. Supp. 391/24 ERC 1289/(W.D. Mo., 12/12/1985) Settlement agreement, contribution

The court approves a preliminary settlement agreement under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) between the United States and four generator defendants. The court first reviews the procedural posture of the case and makes findings of fact concerning the site of contamination. The court then approves the preliminary settlement agreement, first noting that the public notice requirements of 28 C.F.R. § 50.7 are possibly applicable and have been satisfied by announcement of the agreement in the Federal Register. The court then rules that the preliminary agreement is legal and fair. The court notes that the effect of the settlement on nonsettling parties should be determined under the 1977 Uniform Comparative Fault Act, under which the United States' total claim is reduced in proportion to the shares of the settling parties. The court lastly concludes that the preliminary agreement is reasonable. There is a serious environmental risk at the site, alternatives to the agreement that would result in the cleanup of the site are unacceptable, the proposed remedy is technically adequate, and the agreement furthers CERCLA's goals and is in the public interest.

Turning to the settling defendants' rights of contribution from the nonsettling defendants, the court rules that a potentially responsible party may recover response costs from other potentially responsible parties where such costs are necessary and consistent with the national contingency plan. Neither Environmental Protection Agency approval nor listing on the national priorities list is necessary. The court then reviews components of costs incurred by the settling defendants and rules on their recoverability. The court holds that the settling defendants are entitled to contribution from other responsible parties for the costs of the remedial investigation/feasibility study and for the future costs of implementing the approved remedy.

[Related opinions are published at 12 ELR 20238; 14 ELR 20207, 20809; 16 ELR 20193; and 17 ELR 20167.]

Counsel for Plaintiff
Kenneth Josephson, Ass't U.S. Attorney
549 U.S. Cthse., 811 Grand Ave., Kansas City MO 64106
(816) 374-3122

John R. Barker
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3907

Counsel for Defendants
Michael E. Waldek, John L. Hayob, Terry L. Karnaze
Niewald, Waldek, Norris & Brown
2500 Commerce Tower, Kansas City MO 64105
(816) 842-3512

Jerome T. Wolf, Carl H. Helmstetter
Spencer, Fane, Britt & Browne
1000 Power & Light Bldg., 106 W. 14th St., Kansas City MO 64105
(816) 474-8100