## Facts

- A pesticide formulation plant operated in Commerce City, Colorado from the late 1950s to 1971; a 1965 fire and rubble contributed to contamination.
- EPA listed a 2.2-acre adjacent parcel as the Woodbury Chemical Superfund Site in 1983 due to ongoing releases of hazardous substances.
- In 1984, Colorado & Eastern Railroad Company (CERC) purchased the Woodbury Site parcel, an additional adjacent 8–10 acre parcel, and a shortline track along the parcel.
- EPA notified CERC’s principal in 1985 of potential CERCLA liability and directed measures to prevent further releases and dumping.
- A berm and drainage system on CERC’s property failed; the court found a berm collapse caused contaminated water to spill and migrate onto CERC’s parcels.
- The court found CERC refused to repair the berm or allow access for others to do so; access for repair was delayed for about 20 months.
- CERC did not fence its property despite repeated instructions; the court found this allowed public dumping of debris and refuse that later required investigation, excavation, and disposal.
- In a prior federal CERCLA action, Farmland entered a partial consent decree requiring it to perform remedial actions; by 1992 Farmland completed the required work and paid 51% of an additional $1,439,330 for soil and debris work associated with CERC’s parcels.
- Farmland sued under CERCLA § 113(f) seeking contribution from the “CERC Parties” for increased response costs attributable to CERC’s conduct; liability status and some causation had been determined earlier, leaving amount and allocation for a bench trial.

## Issues

1. To what extent did CERC’s acts or omissions (including delaying berm repair and failing to fence) proximately cause incremental response costs beyond the baseline remedy?
2. Were the claimed incremental costs “necessary” response costs consistent with the National Contingency Plan and therefore recoverable in a CERCLA § 113(f) contribution action?
3. How should the court equitably allocate the incremental response costs among responsible parties?

## Decision

- The court held Farmland could recover, in contribution, the incremental response costs attributable to CERC’s conduct.
- The court found CERC’s refusal to repair the berm or allow access, and its failure to fence and prevent dumping despite notice, proximately caused additional contamination and additional debris requiring removal.
- The court found the challenged categories of work (including characterization, excavation, transport, and disposal of soil and debris) were necessary and consistent with the EPA-directed remedy.
- The court allocated the incremental costs using equitable factors and entered judgment requiring the CERC Parties to reimburse Farmland for the court-determined share.

## Legal Principles

- CERCLA § 113(f) permits a party incurring response costs under a consent decree to seek contribution from other persons liable or potentially liable under CERCLA § 107(a).
- In a § 113(f) action, the court has broad discretion to allocate response costs among liable parties using equitable factors it finds appropriate.
- A liable party may be charged with incremental response costs where its conduct or failure to act foreseeably worsens contamination, increases migration, or permits conditions (such as dumping) that enlarge cleanup needs.
- Recoverable response costs must be necessary and consistent with the National Contingency Plan; costs tied to implementing an EPA-approved remedy and supported by documentation may satisfy this requirement.

## Conclusion

The court awarded CERCLA contribution for incremental cleanup costs where a later landowner, despite notice and directions from EPA, failed to timely prevent releases and dumping, thereby increasing the scope and expense of the remediation; the court treated those incremental costs as necessary, NCP-consistent response costs and allocated them equitably among responsible parties.


Farmland Indus., Inc. v. Colo. & E. R.R. Co., 944 F. Supp. 1492 (D. Colo. 1996)