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Denver, City & County of v. Adolph Coors Co.

ELR Citation: 24 ELR 20112
Nos. No. 91-F-2233, 829 F. Supp. 340/(D. Colo., 02/24/1993)

The court approves settlement agreements relating to liability under the Comprehensive Environmental Response, Liability, and Compensation Act (CERCLA) of current and former owners of the Lowry Landfill site near Denver, Colorado, and holds that CERCLA §113(f)(2) bars response cost contribution claims by nonsettling parties against the settlors. The court first holds that the city and county of Denver, Colorado, is a "state" for purposes of CERCLA §113(f)(2)'s bar on contribution claims. Although Denver apparently signed few, if any, of the settlement agreements, it has as much of a relationship with them as if it had signed them. Additionally, public policy considerations, especially CERCLA's goals of achieving prompt cleanup and imposing the costs on those responsible for contamination, compel the conclusion that both cities and private parties should be eligible for contribution protection. The court next holds that the nonsettling defendants' liability will be reduced by the amount of money paid by the settling defendants pursuant to the agreements. Defendants' argument that their liability should be reduced by the equitable share of the settlors' liability, as measured by relative toxicity of the waste rather than each party's volumetric share, is unsupported by case law. Moreover, the language in §113(f)(2) specifically provides that liability is to be reduced by the amount of the settlement, indicating that Congress made a conscious choice not to adopt the Uniform Comparative Fault Act approach, as urged by defendants, but rather chose the approach of the Uniform Contribution Among Tortfeasors Act. Defendants' approach would provide a disincentive to settlement, as settlors would still be required to litigate the relative toxicity of their wastes. The court next holds that response cost actions are actions for contribution and are thus prohibited by contribution bars. Finally, the court holds that the premiums paid under the agreements for the plaintiffs' assumption of the risks of cost overruns and other obligations shall not be charged to the nonsettlors. Plaintiffs are merely acting as insurers, and the payment for the agreement to insure against risks is analytically distinct from the payment for environmental damage. However, the premiums relating to response costs are to be charged to the nonsettlors.

Counsel for Plaintiffs
Russell E. Yates, Carolyn L. Buchholz
Patton, Boggs & Blow
1660 Lincoln St., Ste. 1975, Denver CO 80264
(303) 830-1776

Robert S. Treece, Daniel S. Maus
Treece, Alfrey & Musat
One Denver Pl., 999 18th St., Ste. 1600, Denver CO 80202
(303) 292-2700

Counsel for Defendants
John R. Jacus, Russell Carparelli
Bradley, Campbell, Carney & Madsen
1717 Washington Ave., Golden CO 80401
(303) 278-3300

Elizabeth H. Temkin, Mark J. Gilbert
Ballard, Spahr, Andrews & Ingersoll
Seventeenth St. Plaza Bldg., 1225 17th St., Ste. 2300, Denver CO 80202
(303) 292-2400