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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO 

Judge Raymond P. Moore 

Civil Action No. 11-cv-02244-RM-MJW 

UNITED STATES OF AMERICA, 

 Plaintiff, 

v. 

ROCK WEISS, 

 Defendant. 

ORDER ENTERING CONSENT DECREE 

The United States of America commenced this action pursuant to the Comprehensive 

Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et 

seq., seeking to recover costs it incurred in cleaning up the Cherokee Print Shop Wastes 

Superfund Site, located at 4411 Cherokee Street, Denver, Colorado (the “Site”). In the 

Complaint (ECF No. 1), the Government alleges that Defendant Rock Weiss is jointly and 

severally liable with former Co-Defendant Richard Wilmer for all response costs incurred in 

connection with the Site. 

 On September 20, 2013, the Government requested that this Court approve the consent 

decree and filed an Unopposed Motion (ECF No. 133) to that end. For the reasons explained 

below, the Motion is GRANTED and the consent decree is APPROVED. 

I. JURISDICTION AND BACKGROUND 

Plaintiffs have filed claims under 42 U.S.C. § 9607. Accordingly, jurisdiction in this 

Court is not only proper, it is mandatory. 42 U.S.C. § 9613(b); see also 28 U.S.C. § 1331. 

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Because the alleged actions and resultant damages occurred in this district, venue in this court is 

also proper. Id.; see also 28 U.S.C. § 1391(b) and (c). 

A. Facts 

The United States of America (the “Government”), on behalf of the Administrator of the 

United States Environmental Protection Agency (“EPA”), filed a Complaint in this matter 

pursuant to Section 107 of CERCLA, seeking reimbursement of response costs incurred in 

connection with the release or threatened release of hazardous substances at the Site. Mr. Weiss 

has entered into a Proposed Consent Decree with the Government, but he does not admit any 

liability arising out of the events alleged in the Complaint. 

The Complaint alleges that Mr. Weiss owned a semi-trailer filled with various containers 

of screen printing materials, including hazardous substances. Mr. Weiss advertised the semitrailer for sale on Craigslist in 2006, seeking $900.00 for the trailer alone, and a reduced price of 

$600.00 for the trailer with contents. Defendant Wilmer responded to the advertisement and 

purchased the trailer and its contents for $600.00. Defendant Wilmer later unloaded the contents 

of the trailer at the Site, and then removed the trailer from the property. Mr. Weiss, doing 

business as Accu Press, owned the contents of the trailer that were disposed of on the Site, 

including the hazardous substances. 

 In November of 2009, the Denver Fire Department and Denver Department of 

Environmental Health requested EPA’s assistance in assessing conditions at the Site. On 

December 28, 2009, EPA issued an Action Memorandum, selecting a removal action to address 

the releases and threatened releases of hazardous substances at the Site. The removal action 

constituted securing the Site, identifying the waste streams and removing all containers and 

contaminated soils for final disposal. EPA completed the removal in February 2010. The total 

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costs incurred by the Government in cleaning up the site, including both direct and indirect costs, 

was $70, 293.70.1

 

B. Procedural History 

Default Judgment was entered against Defendant Wilmer on November 23, 2012. (ECF 

No. 13.) Mr. Weiss proceeded pro se for approximately the first two years of litigation until 

April 1, 2013, when pro bono counsel entered an appearance. (ECF Nos. 97, 98, 99.) Trial was 

scheduled for April 1, 2013 and rescheduled to August 21, 2013 after a continuance was granted 

by the Court. (ECF No. 91.) A stay of the proceedings was granted on June 28, 2013 (ECF No. 

128) to allow for ongoing settlement negotiations. A proposed Consent Decree was lodged with 

the Court on August 1, 2013 (ECF No. 129) and an additional stay in the proceedings was 

granted. (ECF No. 132.) 

In accordance with 28 C.F.R. § 50.7, notice of the lodging of the proposed Consent 

Decree was published in the Federal Register on August 7, 2013. See 78 Fed. Reg. 48192. The 

notice invited the public to comment on the proposed settlement within a period of 30 days. See 

id. No comments were received. 

II. LEGAL STANDARD 

“A consent decree is primarily a means by which parties settle their disputes without 

having to bear the financial and other costs of litigating.” Local No. 93, Int’l Ass’n of 

Firefighters v. City of Cleveland, 478 U.S. 501, 528-529 (1986). A consent decree that is entered 

in federal court “must be directed to protecting federal interests.” Frew v. Haskins, 540 U.S. 

431, 437 (2004). In Firefighters, the Supreme Court said that a federal consent decree must: (1) 

 

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 The Government originally estimated its costs to be in the amount of $128,850.09, but updated that amount 

downward in February 2012 with an affidavit by a Certified Public Accountant. See ECF No. 40 at 2. 

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spring from and serve to resolve a dispute within the court’s subject matter jurisdiction; (2) come 

within the general scope of the case based on the pleadings; and (3) further the objectives of the 

law on which the claim is based. 478 U.S. at 525. 

A district court may either approve or deny the issuance of a consent decree; however, it 

is “not entitled to change the terms of the agreement stipulated to by the parties.” United States 

v. State of Colo., 937 F.2d 505, 509 (10th Cir. 1991). If deficiencies are found, it is proper for the 

district court to advise the parties of its concerns and allow them to submit a revised decree. See 

id. 

Because a consent decree bears the imprimatur of judicial approval, a district court “must 

ensure that he agreement is not illegal, a product of collusion, or against the public interest.” Id. 

A district court must also determine that the decree is “fair, adequate, and reasonable before it is 

approved.” Id., see also United States v. Telluride Co., 849 F.Supp. 1400, 1402 (D. Colo. 1994) 

(stating that the relevant standard is whether the proposed decree “is fair, reasonable and 

equitable and does not violate law or public policy.”). 

Fairness contains both procedural and substantive components. United States v. Cannons 

Eng’g Corp., 899 F.2d 79, 86 (1st Cir. 1990). “To measure procedural fairness, a court should 

ordinarily look to the negotiation process and attempt to gauge its candor, openness, and 

bargaining balance.” Id. A substantively fair consent decree incorporates “concepts of 

corrective justice and accountability: a party should bear the cost of harm for which it is legally 

responsible.” Id. at 87. Substantive fairness overlaps with the requirement that the decree be 

equitable. See Colo. v. City & Ctny. Of Den., No. 10-cv-1303, 2010 WL 4318835, at *4 (D. 

Colo. Oct. 22, 2010); WildEarth Guardians v. Jackson, Nos. 11-cv-00001, 11-cv-00743, 2011 

WL 4485964, at *4 (D. Colo. Sept. 27, 2011). 

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In determining whether the Proposed Consent Decree is reasonable, the Court must 

consider such factors as whether the decree is in the public interest and upholds the objectives of 

CERCLA, whether the decree is technically adequate to accomplish the goal of cleaning the 

environment, and whether it reflects the relative strength or weaknesses of the settling party’s 

position. See United States v. Kerr-McGee Corp., No. 07-cv-010134, 2008 WL 863975, at *5 

(D. Colo. Mar. 26, 2008); WildEarth Guardians, 2011 WL 4485964, at *4. “Overlaid on this 

evaluation is the most important factor: whether the consent decree is in the public interest and 

upholds the objectives of CERCLA’s resource damage provisions, chief among which is the 

‘restoration or replacement of natural resources damaged by unlawful releases of hazardous 

substances.’” Colo., 2010 WL 4318835, at *4 (quoting New Mexico v. General Elec. Co., 467 

F.3d 1223, 1245 (10th Cir. 2006)). 

In conducting its analysis, a district court must keep in mind the strong policy favoring 

the voluntary settlement of disputes. Id. Judicial deference to settlements is particularly strong 

where the consent decree has been negotiated by the EPA, “which enjoys substantial expertise in 

the environmental field.” Id. Thus, although “a district may not simply rubber stamp a consent 

decree, it ‘must defer heavily to the parties’ agreement and the EPA’s expertise.’” Id. (quoting 

United States v. Charles George Trucking, 34 F.3d 1081, 1085 (1st Cir. 1994). 

III. ANALYSIS 

The Government filed a Proposed Consent Decree which requires Defendant Weiss to 

pay $600.00 to the United States in reimbursement of responses costs. The Proposed Consent 

Decree stipulates that the interest shall be calculated from the date of entry of the consent decree 

through the date of payment. (ECF No. 129-1 at 7.) According to the Proposed Consent Decree, 

if any amount due to EPA is not paid by the required date, Mr. Weiss shall be in violation of the 

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consent decree and shall pay as a stipulated penalty, in addition to the interest required, $50 per 

violation per day that such payment is late. 

The proposed Consent Decree provides Settling Defendant with a covenant not to sue 

under Section 107(a) of CERCLA for response costs. Settling Defendant will also receive 

contribution protection pursuant to Section 113(f)(2) of CERCLA. The Government reviewed 

the Financial Information submitted by Mr. Weiss to determine whether he was financially able 

to pay the response costs incurred at the Site. 

CERCLA Section 122(g)(7)(b) permits reduced settlement amounts where a person’s 

ability to pay response costs is limited, upon consideration of their overall financial position and 

demonstrable constraints on the person’s ability to raise revenues. As the Unopposed Motion to 

Enter Consent Decree states, “[t]he $600.00 payment reflects [Mr. Weiss’s] limited ability to pay 

response costs...[Mr. Weiss] provided financial documents to the United States demonstrating 

his limited ability to pay response costs.” (ECF No. 133 at 4.) 

In evaluating the proposed consent decree, this Court must balance a number of 

competing concerns. First, I am mindful of the policy encouraging settlements. This policy “has 

even more force where ‘a government actor committed to the protection of the public interest has 

pulled the laboring oar in constructing the proposed settlement.’” Colo., 2010 WL 4318835, at 

*4 (quoting Cannons, 899 F. 2d at 84). Second, I may not “merely imprint [the parties’] decision 

as though possessed of a clerical rubber stamp.” Telluride, 849 F.Supp. at 1402. In suits 

affecting the public interest, my review must be thorough. See Colo., 2010 WL 4318835, at *4 

(citing Janus Films, Inc. v. Miller, 801 F.2d 578, 582 (2nd Cir. 1986). However, I do not 

substitute my judgment of what constitutes an appropriate settlement or attempt to reform the 

decree. Telluride, 849 F.Supp. at 1402 (citing United States v. Akzo Coatings of Am., Inc., 949 

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F.2d 1409, 1409 (6th Cir. 1991)). The relevant standard is whether the Proposed Consent Decree 

is fair, reasonable, and equitable and does not violate law or public policy. Id. I will evaluate 

the Proposed Consent Decree according to the standards laid out above. 

I find the Proposed Consent Decree is both procedurally and substantively fair. The 

decree resulted from extensive arms-length negotiation between two represented parties. The 

Government was represented by counsel from the Department of Justice and EPA with expertise 

in environmental law and specifically in CERCLA, and was advised by technical staff with 

extensive Site knowledge. (ECF No. 133 at 9.) Mr. Weiss was represented by counsel that 

advocated on his behalf for a settlement that recognized his limited ability to pay and secured an 

extended time period for repayment. (Id. at 10.) The parties engaged in a meaningful process 

aimed at reaching a resolution which balanced the interests of the public against the uncertainty 

of litigation. There is nothing in the record that would cause me to suspect that these 

negotiations were anything but candid and in good faith; the proposed consent decree is fair. 

The Court also finds that the Proposed Consent Decree is adequate and reasonable. The 

removal action has already been completed, the public is compensated by the Proposed Consent 

Decree to the degree practicable, and the Proposed Consent Decree reflects the strength of the 

Government’s case under CERCLA. (ECF No. 133 at 10-11.) 

Although the ultimate settlement amount is limited, the Government reasonably 

determined that the settlement adequately compensated the public—especially when weighed 

against the costs and time of litigation, and in consideration of the financial resources of Mr. 

Weiss. In light of these concerns, the settlement amount sufficiently compensates the public for 

reasonably certain natural resource damages resulting from contamination at the Site; it is 

therefore substantively fair and equitable. 

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The Proposed Consent Decree is lawful. It was entered into pursuant to statutory 

authority delegated to officials at the U.S. Department of Justice and EPA. The Proposed 

Consent Decree is consistent with the underlying policies and purposes of CERCLA. In 

addition, the public was given notice and 30 days to comment on the Proposed Consent Decree, 

and there were no public comments received in response to the notice. 

IV. CONCLUSION 

For the reasons set forth above, the Court finds the Proposed Consent Decree fair, 

reasonable, consistent with the purpose of CERCLA, and in the public interest. Accordingly, the 

Court ORDERS as follows:

1. United States’ Unopposed Motion to Enter Consent Decree (ECF No. 133) is 

GRANTED; 

2. The Proposed Consent Decree is APPROVED; 

3. The Clerk of the Court is directed to close this case. 

DATED this 6th day of November, 2013. 

 BY THE COURT: 

____________________________________ 

RAYMOND P. MOORE 

United States District Judge 

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