Atlantic Richfield Co. v. American Airlines, Inc.

ORDER

Now before the Court is the Report and Recommendation of the U.S. Magistrate Judge (Docket # 642) filed March 3, 1993, pertaining to the Plaintiffs Motion for Determination of Good Faith Settlement (Docket #259) and the Defendants’ Memorandum Regarding the Proper Settlement Bar Rule (Docket # 270). Defendant Groups I, III and V have objected to the Magistrate’s Report and Recommendation which concludes that the pro tanto credit rule should be applied in this case.

The Plaintiff asks the Court to bar any and all claims by non-settling Defendants against settling Defendants for contribution or indemnity associated with liability for clean-up of the hazardous wastes disposed at the Sand Springs Petrochemical Complex Superfund Site (“Site”) and asks the Court to apply the pro tanto credit rule to any future recovery against non-settling Defendants. No party resists the imposition of a contribution bar with respect to settling defendants; however, Defendant Groups I, III and V argue that the Court should apply the proportionate credit rule rather than the pro tanto credit rule to any future recovery against non-settling defendants.

The procedural history and background of this case are sufficiently detailed in the Findings of Fact and Conclusions of Law filed simultaneously herewith and thus such Findings and Conclusions shall be incorporated as though fully set out in this Order.

The issue before the Court is the proper credit rule to apply to any future recovery against non-settling defendants. A number of courts have discussed the application of the pro tanto and proportionate credit rules as they apply to cases brought pursuant to the Comprehensive Environmental, Response, Compensation, and Liability Act (“CERCLA”). See Magistrate’s Report and Recommendation of March 3, 1993, pp. 6-7. The pro tanto approach is contained in the Uniform Contribution Among Tortfeasors Act (UCATA), which provides contribution protection to all settling parties and reduces the amount of the non-settling parties’ liability by the dollar amount of the settlements. *765 This approach requires the Court to conduct a “fairness hearing” prior to approving a partial settlement.

The proportionate approach is used in the Uniform Comparative Fault Act (UCFA) to handle partial settlements. This approach results in the reduction of the plaintiffs claim by the percentage of the settling defendant’s causal fault, which must be determined at trial, where total damages and the percentage of the settling defendants’ proportionate fault are found.

The Magistrate’s Report and Recommendation includes a thorough explanation of the development of the case law and discusses the practical and policy considerations relevant to this issue. The Magistrate concluded that the application of the proportionate or pro tanto approach is a matter left to the Court’s discretion and should be determined on a case by case basis in an effort to both reach an. equitable i’esult and further the goals of CERCLA. The Magistrate concluded that the pro tanto rule “is clearly superi- or” under the facts of this case and should be applied herein. This Court agrees.

The Court reviews the issue of the proper credit rule on a de novo basis. 28 U.S.C. § 636(b)(1)(C).

Prior to 1986, CERCLA did not include a provision dealing with settlements or the proper apportionment methodology to be used when plaintiffs entered into partial settlements. United States v. Consei-vation Chemical Co., 628 F.Supp. 391 (W.D.Mo. 1985). 1 Congress subsequently provided some guidance on the issue in the Superfund Amendments and Reauthorization Act of 1986 (“SARA”), Pub.L. 99-499, § 113(f), which provides in pertinent part:

(1) Contribution

Any person may seek contribution from any other person who is liable or potentially liable under section 107(a), during or following any civil action under section 106 or under section 107(a). Such claims shall be brought in accordance with this section and the Federal Rules of Civil Procedure, and shall be governed by Federal law. In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate..... (2) Settlement

A person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement. Such settlement does not discharge any of the other potentially liable persons unless its terms so provide, but it reduces the potential liability of the others by the amount of the settlement.

This amendment clearly adopted the contribution bar and pro tanto credit rule for administrative or judicially approved settlements involving the United States or a State. However, it did not explicitly provide which credit rule should be applied to settlements when the cost recovery action is brought by a private party, rather than the United States or a State.

Several courts have continued to follow the analysis and reasoning, of Conservation Chemical and have applied the proportionate credit rule to settlements involving private parties, despite Congress’ express adoption of the pro tanto rule for partial settlements with the government. E.g. Edward Hines Lumber Co. v. Vulcan Materials Co., 685 F.Supp. 651 (D.C.Ill.1987), affd 861 F.2d 155 (7th Cir.1988); Lyncott Corp. v. Chemical Waste Management, 690 F.Supp. 1409 (E.D.Pa.1988); and United States v. Western Processing Co., Inc., 756 F.Supp. 1424 (W.D.Wash.1990). These courts concluded that. Congress only intended for the pro tan-to rule to be applied in actions brought by the Government and that policy and practical considerations still favored the application of the proportionate rule in actions brought by private parties. 2

*766 Other courts have viewed the passage of SARA as an indication that Congress has rejected the UCFA approach and the proportionate credit rule. Allied Corp. v. Frola, 730 F.Supp. 626 (D.N.J.1990); United States v. Cannons Engr. Corp., 720 F.Supp. 1027 (D.C.Mass.1989), affd, 899 F.2d 79 (1st Cir. 1990); and United States v. Rohm & Haas Co., 721 F.Supp. 666 (D.N.J.1989). Neither the Tenth Circuit Court of Appeals nor this Court has yet addressed the issue of the proper credit rule to be applied in CERCLA cases brought by private parties.

Although the majority of Courts that have been faced with this issue have applied the proportionate rule, this Court concludes that it has the discretion to apply the credit rule which under the facts of the instant case will best achieve the overriding objectives of CERCLA. Upon consideration of all the facts and circumstances of this particular case, the Court concludes the pro tanto rule is superior to the proportionate rule in this instance.

The Magistrate Judge and the Settlement Judge have thoroughly compared the proportionate and pro tanto credit rules and have concluded that under the facts of this case, the pro tanto rule would better facilitate settlement. See Magistrate’s Report and Recommendation of March 3, 1993, and Settlement Judge’s letter attached thereto. This Court agrees.

Adoption of the proportionate rule in this case would substantially complicate Plaintiffs trial task 3 and expose Plaintiff to the risk of a less than full recovery. 4 On the other hand, adoption of the pro tanto approach in this case will assure Plaintiff of a full recovery and apparently will not leave the non-settling defendants with an inequitable share of the costs. 5 The Court does not share Defendants concern that application of the pro tanto rule will result in the non-settling defendants being assessed an inequitable portion of the response costs.

Furthermore, the prospect of conducting “fairness hearings” does not dissuade this Court from applying the pro tanto credit rule in this case. The Court has conducted an evidentiary hearing on the fairness of the ARCO/Sand Springs Home settlement and has concluded that the settlement was in good faith and is fair to the non-settling defendants. The Court has also previously found that the de minimis settlements were entered into in good faith and with certain minor exceptions, the parties have stipulated the de minimis settlements were fair. Although “fairness hearings” do take the Court’s time, they also simplify trial.

In summary, the Court concludes the selection of the proper credit rule is a matter that has been left to the Court’s discretion, to be evaluated on a case-by-case basis. In this particular instance, the Court concludes application of the pro tanto rule will best achieve the objectives of CERCLA by encouraging settlement, simplifying trial and equitably distributing cost. For all the reasons stated herein, the Court hereby AFFIRMS the Report and Recommendation of the Magistrate Judge filed March 3, 1993, and adopts the pro tanto credit rule in this case. 6

The trial schedule is hereby amended and the pre-trial conference is hereby reset as follows:

*767 September 17, 1993 COMPLETE ALL DISCOVERY;

September 3, 1993 EXCHANGE THE NAMES AND ADDRESSES OF ALL WITNESSES, INCLUDING EXPERTS, IN WRITING, ALONG WITH A BRIEF STATEMENT REGARDING EACH WITNESS’ EXPECTED TESTIMONY (UNNECESSARY IF WITNESS’ DEPOSITION TAKEN);

September 20, 1993 FILE ANY MOTIONS IN LIMINE

September 22, 1993 FILE AN AGREED PRETRIAL ORDER AND EXCHANGE ALL PRENUM-BERED EXHIBITS;

September 24, 1993 FINAL PRE-TRIAL CON-at 1:30 p.m. FERENCE

October 12, 1993 FILE SUGGESTED FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ANY TRIAL BRIEFS;

October 18, 1993 NON-JURY TRIAL AT 9:30 A.M.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

This report and recommendation pertains to plaintiffs Motion for Determination of Good Faith Settlement (Docket # 259), 1 asking the court to bar any and all claims by non-settling Defendants against settling Defendants for contribution or indemnity associated with liability for clean-up of the hazardous wastes disposed at the Sand Springs Petrochemical Complex Superfund Site (“Site”). 2

Procedural History

In 1988, Plaintiff entered into a Consent Decree with the United States of America, under which it agreed to perform" contamination remedies at the Site and to reimburse the government for the costs of overseeing such remedial actions. Plaintiff, in turn, filed the three actions in this court, which have now been consolidated, to recover its costs from defendants who are allegedly responsible for the wastes. The original three consolidated cases included over 150 defendants and approximately 250 more were subsequently added.

The parties, with the assistance of the court, drafted a Case Management Order (Docket # 88) and First Amended Case Management Order (Docket # 194), dividing the defendants into groups based on whether they were generators, owners, or operators, assigning lead counsel to represent each group, and appointing a single liaison counsel as an administrator, a settlement co-ordinator, and a settlement judge. Cooperation among defendants for the purpose of coordinating discovery, trial, sharing counsel and otherwise minimizing expenses in the litigation was ordered by the court to facilitate resolution of the case. Lead counsel were ordered to coordinate motion practice to reduce filings and lessen the burden on the court of considering such motions. All parties were ordered to exchange all documentary evidence in their possession concerning each defendant’s connection with the Site. General plaintiff and defendant interrogatories were ordered to be developed by the parties to promote efficiency, and plaintiffs counsel, liaison counsel, and lead counsel were ordered to establish a schedule for all depositions. Timing for exchange of information was set out. Through the efforts of the settlement judge and cooperation of all parties, the process of de minimis settlements has reduced the number of defendants to approximately sixty.

De Minimis Settlements Predicated Upon Volume and Solvency

Plaintiff has entered into agreements with numerous potential responsible parties (“PRPs”), settling their liability at the Site. *768 These settlements have taken into consideration all data available concerning the amount of contaminants contributed by each settling party, in relationship to the total amount of contaminants deposited at the Site, as measured in gallons. Alternatively, some de minimis settlements have been conjointly predicated upon gallonage and inability to pay. When claims of poverty were made by parties with de minimis gallonage, a process was designed whereby the settlement coordinator would investigate the authenticity of the claim and report to Plaintiff whether settlement was recommended, based on inability to pay. Plaintiff then conducted its own investigation and either accepted or rejected that recommendation.

Request for Contribution Bar and Pro Tanto Credit

Plaintiff asks that its future recovery against non-settling Defendants be based on the pro tanto rule, rather than the proportionate rule, as these are defined in a securities case, Federal Deposit Insur. Corp. v. Geldemann, Inc., 763 F.Supp. 524, 528 (W.D.Okla.1990) 3 . Plaintiff also asks that the court bar any and all claims against the settling parties for liability associated with the Site, except to the extent that such claims are preserved by the settlements. 4

Plaintiff argues that the pro tanto rule encourages settlement and that the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et. seq., expressly provides for such settlements. 42 U.S.C. § 9613(f). This section applies to settlements with the government, but Plaintiff argues that the policy is equally applicable to settlements among private parties. It points out that if contribution claims are allowed after a party has settled its liability, there is no incentive to settle at all. 5

Request for Proportionate Credit

In their Memorandum Regarding the Proper Settlement Bar Rule (Docket # 270) and Memorandum Regarding the Effect of De Minimis Settlements and Contribution Bar Upon Non-Settling Defendants’ Liability (Docket #300), the Defendants in Group I *769 accurately argue that application of the pro tanto rule would immediately establish the relative responsibility of settling versus non-settling parties, with non-settling Defendants bearing the consequences of proceeding to trial. 6 Group I also argues that this rule is inconsistent with the notion of proportionate fault and is therefore inequitable, that it impedes total settlement because non-settling parties have a known “buffer” and may consequently gamble on a trial, and that it encourages collusion among defendants. The group asks the court to apply the proportionate rule, which it characterizes as more equitable and easier to apply, because it does not require fairness hearings. 7 It notes that the majority of courts in CERCLA cases have applied this rule.

Settlement Judge’s Analysis

The settlement judge in this case, Professor Martin A. Frey, 8 provided the court with his comments as to which settlement bar rule would more likely encourage settlement in a letter dated June 1, 1992, which is attached as Appendix “A”. After a thorough and thoughtful analysis of the pro tanto and proportionate rules, he concluded that the pro tanto rule creates an additional incentive for defendants to settle, reduces some of the uncertainties that a plaintiff must face when structuring a settlement, and would enhance the settlement efforts of this case. He noted that the best way to promote settlement is to provide litigants with the incentive to settle and with clear, predictable rules regarding the effects of settlement.

Legal Analysis

A number of courts have discussed the application of the pro tanto and proportionate rules to CERCLA eases. The pro tanto approach is contained in the Uniform Contribution Among Tortfeasors Act (UCATA), which provides contribution protection to all settling parties and reduces the amount of the non-settling parties’ liability by the amount of the settlements.

The proportionate approach is used in the Uniform Comparative Fault Act (UCFA) to treat partial settlements. This approach results in the reduction of the plaintiffs claim by the percentage of the settling defendant’s causal fault, but at the time of settlement the plaintiff does not know the exact amount or the proportion of that reduction, which must be determined at trial, where total damages and the percentage of the settling defendants’ proportionate fault are found. The settling defendant is discharged from all liability for contribution, but may seek contribution from non-settling parties for amounts paid to extinguish the defendants’ joint liability.

Prominent cases which have applied the proportionate approach to CERCLA cases include United States v. Conservation Chemical Co., 628 F.Supp. 391 (W.D.Mo.1985); Edward Hines Lumber Co. v. Vulcan Materials Co., 685 F.Supp. 651 (D.C.Ill.1987), affd, 861 F.2d 155 (7th Cir.1988); Lyncott Corp. v. Chemical Waste Management, 690 F.Supp. 1409 (E.D.Pa.1988); United States v. Western Processing Co., Inc., 756 F.Supp. 1424 (W.D.Wash.1990); Allied Corp. v. Acme Solvent Reclaiming, Inc., 771 F.Supp. 219 (N.D.Ill.1990); Comerica Bank-Detroit v. Allen Industries, Inc., 769 F.Supp. 1408 (E.D.Mich.1991).

Courts finding the pro tanto approach should be applied include Allied Corp. v. Frola, 730 F.Supp. 626 (D.N.J.1990); In Re *770 Acushnet River & New Bedford Harbor, 712 F.Supp. 1019 (D.Mass.1989); United States v. Rohm & Haas Co., 721 F.Supp. 666 (D.N.J.1989); United States v. Cannons Engr. Corp., 720 F.Supp. 1027 (D.C.Mass. 1989), affd, 899 F.2d 79 (1st Cir.1990); The City of New York v. Exxon, 697 F.Supp. 677 (S.D.N.Y.1988).

In Conservation Chemical, the court emphasized that, while CERCLA is silent on apportionment methodology, 9 any method should take into account parties whose relative fault depends upon factual circumstances and therefore who must be found responsible on some basis of comparative fault. Contribution, the court stated, is an equitable remedy and the legislative history of CERCLA imposes a duty on courts to apportion responsibility equitably, so no windfall results from an arbitrary apportionment with no basis in comparative fault. The court concluded that the effect of settlement on non-settling parties should be governed by the Uniform Comparative Fault Act, since its principles are most consistent with, and implement, Congress’ intent in drafting CERCLA.

The court in Edward Hines Lumbér Co. recognized that contribution bars encourage settlement of complex litigation, but found an extensive fairness hearing undesirable in a case where the government was not involved, the consent decree identified the remedial action to be taken, and the court’s only duty was to apportion clean up costs. The proportionate approach was applied to avoid such a hearing.

In Lyncott Corp., the court also adopted the reasoning of the Uniform Comparative Fault Act in concluding that there should, be uniform application of principles of contribution in CERCLA actions. It found that the Uniform Contribution Among Tortfeasors Act favored pro rata apportionment over comparative fault and required a fairness hearing in every case to determine good faith.

The court in Western Processing noted that § 9613(f)(2) 10 of CERCLA discusses “settlement” and provides that a settlement with the United States or a state reduces the potential liability of others by the amount of the settlement, but concluded it does not mandate a similar result concerning contribu *771 tion, which is dealt with in § 9613(f)(1). This subsection of Title 42 states that any person may seek contribution from any other person who is liable or potentially liable under CERCLA and that a court “may allocate response costs among liable parties using-such equitable factors as the court determines are appropriate.” 11

The court in Acme Solvent Reclaiming, Inc. adopted the premise of Lyncott that a uniform federal rule regarding contribution should be adopted so that consistent principles of contribution and allocation of damages develop in CERCLA actions. It noted that another advantage of the comparative fault [proportionate] rule is that it does not require a fairness hearing. “In a complex ease such as this one, a fairness hearing would be long and arduous. Holding a hearing in this case would negate the benefits, such as finality and reduced cost, which a settlement otherwise offers to the settling-parties.” 771 F.Supp. at 223.

In The City of Neiv York, the court engaged in a detailed exploration of whether the City of New York was a “state” under § 113(f)(2) when it settled with the defendant, having concluded that the statute did not apply to settlement between private parties. The court concluded: “the state has expressed its approval of the City’s role in this litigation, and the Judgment reflects a comprehensive settlement worked out between the State, the City, and the settlers. To deny the settling parties the statutory benefits of section 113(f)(2) under these circumstances would be unduly formalistic.” 697 F.Supp. at 686.

In Comerica Bank-Detroit the court concluded that § 113(f)(2) does not apply to private settlements, but only to defendants who settle with a governmental body. It distinguished the City of New York case, noting that the court there concluded that the action of the City of New York was approved by the state, justifying the extension of the § 113(f)(2) pro tanto rule to the city, but that Comerica was a completely private entity with no relation to the state which had never offered to make itself liable for the entire cleanup.

The court in Acnshnet River relied on 8 9613(f)(2) to find that the pro tanto approach was to apply where the government settled with one, but not all defendants. “[T]he words of the statute are clear: the potential liability of the others is reduced ‘by the amount of settlement,’ not by the settling party’s proportionate share of any damages ultimately determined to have been caused.” 712 F.Supp. at 1027. The court admitted that “[t]he few decided cases do not clearly point this way,” and noted the Lyncott Corp. and Edward Hines Immber Co. decisions “fail[ed] even to discuss the language of subsection 113(f)(2).” Id., Footnote 10, at 1026.

Rohm & Haas involved a direct application of the pro tanto rule contained in Section 113(f)(2) in a case where some of the PRPs had settled with the government. Because that ease involved partial settlements with the sovereign, it is factually distinguishable from the ease at hand, where the settlements are occurring with a fellow PRP that undertook a privately paid remediation. However, to the extent that ARCO has responsibly performed the cleanup that was in the first instance the burden of the United States, equity dictates that it should be afforded the same consideration. Consequently, the policy considerations discussed in Rohm & Haas remain compelling under these circumstances. The court found that the proportionate approach is inconsistent with Congress’ intent to expedite effective remedial action and minimize litigation. Id.

While any type of settlement bar provides settling defendants with the peace required to induce settlement, the Rohm & Haas court concluded that the proportionate ap *772 proach had a tremendous negative impact on the benefit the United States or a state could hope to receive from settlement; the responsibility of a settling party for damages would need to be fully litigated to determine the settling party’s proportional share prior to agreement, thus duplicating the aspects and expense of the litigation the settlement was designed to avoid. Id. The only parties which would avoid or decrease litigation expenses would be those settling, and the overall litigation would remain as complex and unwieldy as it was prior to settlement. Id.

The court in Rohm & Haas concluded that, under the proportionate approach, there would be no incentive for governmental plaintiffs to enter into such settlements, since by doing so they would not decrease their enforcement costs, but rather take on the burden of showing that the settling defendants paid their equitable share. If unsuccessful, the government would be faced with covering the shortfall between the amount of the settlement and the settling parties’ equitable share of the response costs. There would be little incentive to settle with de minimis parties. The court concluded: “[W]e do not believe that this scenario, which follows from use of a proportional or equitable approach, is consistent with Congress’s intention to facilitate the voluntary settlement of CERCLA litigation.” Id. at 679.

The Rohm & Haas court noted that CERCLA does not refer to “good faith settlements”, but rather to “an administrative or judicially approved settlement.” Id. at 678. “The amendment recognizes that judicial examination and approval of the settlement itself is adequate to protect against improper or ‘bad faith’ settlements”. Id. The court determined that it was to measure the reasonableness of a settlement against the CERCLA section’s purpose to “expedite effective remedial action and minimize litigation”, while keeping an eye on the overall “statutory constellation that is CERCLA”. Id. at 680. Factors to consider in determining whether a settlement is reasonable include: the strength of a plaintiffs case, the good faith efforts of negotiators, the possible risks of and transaction costs involved in litigation under CERCLA, and the effect of settlement on non-settlers. Id.

The court in Rohm & Haas found that other factors to consider in deciding if a settlement is reasonable are the complexity, expense and likely duration of the litigation, the risks of establishing liability, the ability of the defendant to withstand a greater judgment, and the range of reasonableness of the settlement fund in light of the risks of litigation. Id. A court’s task is not to make a finding of fact as to whether the settlement figure is exactly proportionate to the share of liability attributed to settling defendants. Id. “Rather, it is to determine whether the settlement represents a reasonable compromise, all the while bearing in mind the law’s generally favorable disposition toward the voluntary settlement of litigation and CERCLA’s specific preference for such resolution.” Id. at 680-681.

In another government case, Cannons Engr. Corp., the court likewise found that the plain terms of § 9613(f)(2) indicate “that Congress made a conscious choice in 1986 not to adopt UCFA principles for CERCLA purposes. Rather, Congress adopted the approach taken in section 4 of [the UCATA].” 720 F.Supp. at 1048. The Cannons court noted that section 4 of the UCATA, which provides contribution protection to all settlers, “has the purpose and effect of encouraging settlements by providing protection to early settling parties and subjecting non-settling parties to paying the plaintiffs unrecovered costs. Congress, in enacting section 113(f)(2) of CERCLA, had the same goal of encouraging settlements.” Id. The court pointed out that application of the UCFA to CERCLA cases was inappropriate, because CERCLA liability is not based on negligence or comparative fault, but is based on strict liability to the government. Id. at 1049. The court distinguished the decisions in Edivard Hines Lumber Co. and Lyncott Corp. applying UCFA principles to CERCLA settlements, saying the government was not involved in those cases. 12

*773 The decision in Frola is significant because it involved a non-government plaintiff. Allied had undertaken cleanup of a hazardous waste site and then brought suit against certain responsible parties who had not contributed to a trust fund to reimburse Allied under a settlement with the government. The defendants filed a third-party complaint against Allied and various settling parties. The third-party complaint included a claim for contribution under the State Joint Tortfeasor Contribution Act. The court noted that § 9613(f)(2) provided that settling parties in CERCLA settlements are not liable for claims for contribution by non-settling parties.

The Frola court determined that, despite the refusal to dismiss contribution claims against settling parties in Lyncott, “a subsequent and more synergic view of contribution claims in a CERCLA case” was found in Acushnet and Rohm & Haas, where it was determined that the specific language in § 9613(f)(2) is completely incompatible with any theory of comparative negligence. 730 F.Supp. at 638. The court in Frola concluded that the application of a theory of comparative fault after the adoption of § 9613(f)(2) “is chimerical.” Id. at n. 6. “This interpretation is consistent with the congressional purpose of encouraging settlement of CERCLA cases.” Id. at 638.

Although cited by the parties, the Tenth Circuit’s recent discussion of the pro tanto rule in the context of a securities case is not particularly helpful. See, Federal Dep>osit Insur. Corp. v. Geldemann, Inc., 975 F.2d 695 (10th Cir.1992). There, the court noted that “[c]ontribution bar orders are frequently upheld when they are sought by a settling defendant against a nonsettling defendant in the same ease. These courts have concluded that they have the authority to enter such orders as an integral part of a settlement when the settling parties and all parties to the bar order are before the court.” Id. at 698 (citations omitted). The court emphasized that fundamental due process principles prohibit such a bar order which precludes the rights of nonparties. Id. While the district court had confirmed the good faith nature of the settlement agreement at issue, the court found that “[s]uch confirmation procedures often tend to be abbreviated, imprecise, and lacking in the constitutional safeguards provided by a full and adversarial trial.” Id. at 699.

The Geldemann court also concluded that the district court’s order applying the pro tanto rule was “speculative and premature”, because no judgment had yet been awarded against the defendants and so the basis for, and amount of, the judgment was unknown. Also, whether the settling defendants were joint tort feasors with the remaining defendants was unknown, and the record did not support the court’s decision regarding the amount of the maximum potential setoff. Because that part of the order barring contribution or indemnity against the settling parties was an “important and integral part of the order”, and because of the speculative and premature nature of the setoff part, the Tenth Circuit vacated the entire order, expressing no opinion as to whether the pro tanto rule was the appropriate legal standard to calculate the setoff for related settlements under the circumstances presented. Id. at 700.

The fundamental purpose of CERCLA is to provide for the expeditious clean up of hazardous waste sites; “[ejertainly Congress intended and anticipated that potentially responsible persons would accept and assume the responsibility to effect cleanup,” as opposed to the government bearing the cost. 628 F.Supp. at 404. Congress provided statutory recognition of the fact that the pro tanto approach best serves public policy when the government is involved by enacting § 9613(f)(2) of CERCLA. (See footnote #10).

Those cases that have selected the proportionate approach in CERCLA actions can be distinguished from the case at bar. Conservation Chemical was decided in 1985, before the 1986 SARA Amendments to CERCLA adopted the pro tanto approach. The court *774 made a bad guess that Congress would be more attracted to the superficial “fairness” of proportionality than to the pragmatic procedural efficiencies afforded by pro tanto treatment. Consequently, it emphasized the importance of its obligation to apportion responsibility in a fair and equitable manner and prevent a “windfall to” or “wipeout of’ any party, not the court’s obligation to reduce litigation expense and delay through settlement. 628 F.Supp. at 401^02. The court’s early misperception that the proportionate approach is always “fairer” and thus preferred' was shared by the Western Processing Co. court, which listed as a disadvantage of the pro tanto approach that it fails to equitably distribute losses based on the proportionate fault of the defendants. 13

Edivard Hines Lumber Co. was decided in 1987, and, unlike the case at bar, a very limited number of parties were involved. The court recognized the contribution bar, but used the proportionate approach to avoid the perceived possibility of “extensive” fairness hearings.

Then the proportionate band wagon started rolling. In 1988, the Court in Lyncott Corp. relied on the Conservation Chemical and Edivard Hines Lumber Co. cases when it favored the proportionate approach, attempting to establish a “uniform federal rule.” 690 F.Supp. at 1417. The Lyncott court rejected the pro tanto approach because it was “inconsistent with the law previously established” in that case and because it required a fairness hearing. Id. at 1412. In 1990, the court in Acme Solvent Reclaiming, Inc. relied on these three cases in favoring the proportionate approach, noting that a uniform federal rule was desirable and that any fairness hearing would necessarily be “long and arduous.”