Jump to Navigation
Jump to Content

Polger v. Republic Nat'l Bank

Citation: 19 ELR 20938
No. No. 88-C-295, 709 F. Supp. 204/29 ERC 1479/(D. Colo., 03/02/1989)

The court permits the owner of a hazardous waste site to sue a bank that had foreclosed on a tenant's contaminated equipment for contribution under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 107. The court first holds that the landowner's own liability under CERCLA § 107 does not preclude it from seeking contribution from other potentially responsible parties. The landowner never operated the hazardous waste disposal facility and did not voluntarily permit placement of hazardous substances there, and requiring landowners to prove that they are not liable could deter their efforts to clean up hazardous waste sites quickly. Moreover, CERCLA's purpose is to place the ultimate financial burden for cleanup on those actually responsible for creating the problem. The court next holds that it will not exercise pendent jurisdiction over state law claims based on negligence and nuisance. The state law claims would predominate over the CERCLA claim, as they would require much more extensive evidence at trial than the CERCLA claim, and CERCLA does not authorize recovery of consequential or punitive damages. The court next declines to abstain from exercising jurisdiction in the case based on an ongoing state court appeal of an earlier state court case involving the same facts. While there is some precedent for federal court deference to state court proceedings, here the state court has already determined that it lacks jurisdiction over the CERCLA claim, and federal law rather than state law is at issue. Finally, the court holds that the plaintiffs are not required to pay a defendant's attorneys fees, as the plaintiffs have not acted unreasonably, vexatiously, or frivolously.

Counsel for Plaintiffs
Peter R. Bornstein
Berenbaum & Weinshienk
Ste. 880, Ptarmigan Pl., 3773 Cherry Creek Dr. N., Denver CO 80209
(303) 388-0800

Counsel for Defendant
Robert W. Smith, Martin H. Shore
Hellerstein, Hellerstein & Shore
1139 Delaware St., P.O. Box 5637, Denver CO 80217
(303) 573-1080