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Kalamazoo River Study Group v. Rockwell Int'l Corp.

Citation: 28 ELR 21139
No. 1:95-CV-838, 991 F. Supp. 890/(W.D. Mich., 01/15/1998)

The court holds that Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 107 cost recovery actions are not available to potentially responsible parties (PRPs) and that divisibility of harm is not a defense to § 113 contribution claims. The court first holds that CERCLA does not permit a claim by a plaintiff-PRP against defendant-PRPs for joint and several liability. All of the circuit courts that have considered this issue have held that PRPs can sue only for contribution under § 113. Limiting PRPs to contribution claims is consistent with the language and purpose of CERCLA. If a PRP were able to bring a § 107 claim for joint and several liability against another PRP, it could recoup all of its expenditures regardless of fault. In addition, permitting a PRP to bring a § 107 claim would render § 113(f) meaningless.

The court next denies defendants' request for an order declaring that they are not liable for polychlorinated biphenyl contamination found upstream of their facilities. Divisibility of harm is a defense to a cost recovery claim under § 107 when liability is joint and several. It is not a defense to a § 113 contribution claim. In light of the determination that the plaintiff is limited to a contribution action against defendants, divisibility of harm has no relevance at the liability phase of this case.

Counsel for Plaintiff
Alan C. Bennett
Law, Weathers & Richardson
Bridgewater Pl.
333 Bridge St. NW, Ste. 800, Grand Rapids MI 49504
(616) 459-1171

Counsel for Defendants
Kathryn J. Humprey, Joseph C. Basta
Dykema Gossett
400 Renaissance Ctr., Detroit MI 48243
(313) 568-6800