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Gould Inc. v. A&M Battery & Tire Serv.

ELR Citation: 26 ELR 20516
Nos. No. 3 CV-91-1714, 901 F. Supp. 906/(M.D. Pa., 09/14/1995) motion to disallow CERCLA §107 cost recovery action granted

The court holds that a party that settled its liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) with the U.S. Environmental Protection Agency (EPA) may bring a claim against other potentially responsible parties (PRPs) for contribution under CERCLA §113, but not for cost recovery under CERCLA §107. The court first finds that the settling party's action to recover its equitable share of its response costs is a §113 contribution action. The court notes that numerous decisions from other circuits support the conclusion, that where a responsible party initiates a site cleanup pursuant to governmental pressure, and then sues another PRP to allocate the costs, the action is one for contribution under §113. The settling party's cleanup operations were the direct result of its agreement with EPA. The court next holds that the other PRPs are not responsible for "orphan shares." Liability under §113 is several, and each party is only responsible for their portion of the harm caused at the site. It would be inequitable to hold the other PRPs liable for any of the orphan shares when the operator's "waste-in-list" specifically indicates the exact amount each PRP contributed to the harm. The court next determines that the §113(g)(3) statute of limitations applies in this action. Section 113(g)(3) does not bar the settling party's claim, because the settling party's signing a CERCLA §106 consent order is not one of the four events that must occur before the three-year limitation period is triggered under §113(g)(3).

Counsel for Plaintiff
Dennis R. Suplee
Schnader, Harrison, Segal & Lewis
1600 Market St., Ste. 3600, Philadelphia PA 19103
(215) 751-2000

Counsel for Defendants
James A. Humphreys III
Barley, Snyder, Senft & Cohen
126 E. King St., Lancaster PA 17602
(717) 299-5201