ELR Citation: ELR 20374
No(s). MO-88-CA-05 (W.D. Tex. Jul 24, 1990)

The court approves a partial consent decree requiring two Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) defendants to pay $1 million in return for the government's covenant not to sue for current and future response costs incurred in connection with the Odessa Chromium I site in Texas. The decree also provides that the government will not seek to compel the settling defendants to perform future response actions at the site and provides them with contribution protection from claims by other potentially responsible parties (PRPs). Another defendant objected to the terms of the consent decree, claiming that the proposed settlement amount to be paid by defendant Bell is not commensurate with the harm it caused at the site. The court, noting that Bell is currently in bankruptcy and another named defendant is in very poor financial shape, finds that denial of the partial consent decree would cause protracted litigation with no increased likelihood that any money would be forthcoming from defendants. The court holds that CERCLA §122 places no limits on the government's inherent powers to settle CERCLA actions, and that §113(f)(2) provides authority to settle cost recovery claims by unilaterally providing contribution protection to settlors. The court next holds that nothing in §113(f)(1) limits a court to approving settlements on the basis of "fair share" of liability, and that the record shows that liability for contamination of the site is indivisible other than by equitable means. Thus, the court concludes that because the partial consent decree is fair, adequate, and reasonable in light of the record, approval outweighs forcing the defendants into bankruptcy with no cleanup costs recovered by the government.

[Prior decisions in this litigation are published at 20 ELR 20533 and 21117.]

Counsel for Plaintiff
Peter Mounsey, Harry Kelso
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Eugene Labay
Cox & Smith
2000 NBC Plaza, 1112 E. Pecan St., San Antonio TX 78205
(512) 554-5500