Board of County Commissioners v. Brown Group Retail, Inc.
768 F. Supp. 2d 1092
D. Colo.2011Background
- La Plata County sued Brown Group Retail, Inc. and the Plummer Defendants for environmental contamination at 742 Turner Drive, Durango, site of a former rifle lens plant now used as the Jail.
- Brown Group operated the Plant from 1975-1979; Plummer operated 1979-1982; Brown Group remained owner and later sold the property.
- Solvents used included TCE, TCA, and 1,4-dioxane, disposed via floor trenches and sinks, with contamination found in soil, groundwater, and indoor jail air; a sediment tank contained solvents and was discovered during jail remodeling.
- In 1985 La Plata demolished the sediment tank during jail construction, releasing solvents into the environment and eastward areas, with subsequent backfilling and excavation potentially spreading contamination.
- The case proceeded to a bench trial in 2010 on RCRA and CERCLA claims, with CDPHE oversight; La Plata seeks recoverable response costs and remediations, while Brown Group contests certain costs and liability allocation.
- The court ruled La Plata cannot prove imminent and substantial endangerment under RCRA, but granted CERCLA-based recoveries and allocated liability 75% to Brown Group and 25% to La Plata for past costs, with 75% Brown Group liability for future costs and declaratory relief reflecting this allocation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the contamination present an imminent and substantial endangerment under RCRA? | La Plata contends ongoing contamination poses imminent risk. | Brown Group argues there is no current or imminent danger. | RCRA endangerment not proven; RCRA claim fails. |
| Are La Plata's CERCLA §107(a) cost-recovery costs recoverable and consistent with the NCP? | La Plata incurred reasonable response costs and argues consistency with NCP. | Brown Group challenges certain costs as non-recoverable or non-necessary. | Past recoverable costs determined; certain attorney fees and sediment-tank costs disallowed; total recoverable past costs $694,797; NCP consistency established for the recoverable portion. |
| How should CERCLA §107(a) costs be allocated among Brown Group and La Plata? | La Plata seeks full allocation against Brown Group. | Brown Group seeks apportionment based on Gore factors and other criteria. | Liability is joint and several but allocated 75% Brown Group / 25% La Plata for past and future recoverable costs. |
| What relief is proper under CERCLA §113(g)(2) and §113(f)(1) regarding future costs? | La Plata seeks 100% of future costs; Brown Group argues proportional share. | Brown Group asserts 75% allocation is appropriate for future costs. | Declaratory judgment confirms 75% Brown Group liability for future recoverable costs; Brown Group liable for 75% and La Plata for 25% of future costs. |
Key Cases Cited
- Meghrig v. KFC Western, Inc., 516 U.S. 479 (1996) (endangerment standard for imminent release under CERCLA)
- Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013 (10th Cir.2007) (expands equitable relief; endangerment standard context)
- Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199 (2d Cir.2009) (evidence of exceedance of standards not alone sufficient for endangerment)
- Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 399 F.3d 248 (3d Cir.2005) (evidence beyond standard exceedances required for endangerment finding)
- Key Tronic Corp. v. United States, 511 U.S. 809 (1994) (addressed recoverable costs and attorney fees related to response actions under CERCLA)
- United States v. Atlantic Research Corp., 551 U.S. 128 (2007) (contribution claims under CERCLA §113(f)(1))