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Chemical Waste Management, Inc. v. Armstrong World Indus.

ELR Citation: 18 ELR 20191
Nos. No. 85-1703, 669 F. Supp. 1285/27 ERC 1097/(E.D. Pa., 09/09/1987)

The court holds that the owner/operator of a Resource Conservation and Recovery Act (RCRA) interim status facility and potentially responsible party (PRP) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) may recover CERCLA response costs from generators absent an express contractual provision to the contrary. The court first rules that RCRA and its regulations do not prohibit a RCRA owner/operator from recovering CERCLA response costs. CERCLA §107(a) provides that liability shall attach regardless of any other law and CERCLA applies to active as well as abandoned sites. Further, allowing RCRA owner/operators to recover CERCLA response costs promotes CERCLA's policies, since an owner/operator that knows it can recover from a generator will promptly clean up a hazardous waste site and cleanup costs will be spread among all parties involved in hazardous waste disposal. The court rules that PRPs may recover CERCLA response costs, since CERCLA §113(f) clarifies that a PRP may maintain an action against another PRP.

The court holds that it cannot decide on summary judgment whether plaintiff is precluded by contract from recovering CERCLA response costs. The court holds that CERCLA's liability provisions do not abrogate the parties' contractual rights, but defendants have not shown that the contracts contained express warranties of safe, legal disposal of defendants' wastes and an implied warranty cannot be read into the waste disposal contracts. The court holds that CERCLA §107(e)(1) authorizes indemnity agreements between owner/operators and generators, but no express indemnity agreement has been shown here and an implied indemnity agreement cannot be read into the contract. The court holds that CERCLA does not prohibit plaintiff from seeking contribution from other PRPs. The court holds that the dismissal with prejudice of plaintiff's suit against the prior owner/operator is not res judicata to this action, since the parties and causes of actions in the two suits are different.

Counsel for Plaintiffs
Barry M. Klayman, Franklin Poul, Bruce S. Katcher
Wolf, Block, Schorr & Solis-Cohen
12th Fl., Packard Bldg., SE Corner 15th & Chestnut Sts., Philadelphia PA 19102
(215) 977-2000

Counsel for Defendant
David D. Wilson
Morgan, Hallgren, Crosswell & Kane
700 N. Duke St., Lancaster PA 17604
(717) 299-5251