Jump to Navigation
Jump to Content

New Castle County v. Halliburton Nus Corp.

ELR Citation: 26 ELR 20628
Nos. No. 93-504-LON, 903 F. Supp. 771/41 ERC 1948/(D. Del., 10/06/1995)

The court holds that a municipal potentially responsible party may assert a common-law negligence claim against a response-action contractor, but must bring a contribution claim, rather than a cost recovery claim, under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The municipality incurred response costs under a consent agreement with the U.S. Environmental Protection Agency (EPA) over a landfill. The municipality alleged that the contractor, while performing a remedial investigation/feasibility study for EPA, improperly constructed a well that formed a conduit between a groundwater strata impacted with landfill material and one bearing the municipality's drinking water. The court first adopts the recommendations and report of a magistrate judge that the public duty doctrine does not bar the municipality's negligence claim against the contractor. The contractor does not act as an agent for the state in performing a public duty, because CERCLA §119 specifically creates an independent contractor relationship and contemplates that a response-action contractor will be liable to any person harmed by its negligence. The court notes that though there may be a chilling effect on cleanup operations as a result of this holding, Congress enacted §119 in response to the greater chilling effect from strict liability before the enactment of §119. The court, however, leaves open the possibility, pending further briefing, that the contractor may nevertheless be strictly liable. In prior briefings, the municipality had argued that the contractor should be subjected to a strict liability standard because the well was constructed before the passage of amendments adding §119.

Following the decision in United Technologies Corp. v. Browning-Ferris Industries, Inc., 24 ELR 21356 (1st Cir. 1994), the court next holds that CERCLA §107 does not provide a cause of action to individuals who are CERCLA defendants engaged in a cleanup compelled by the threat of imminent statutory liability. The court rejects the magistrate judge's conclusion that the municipality may proceed under §107 because it may potentially be an innocent party. First, the relevant subject of the consent agreement is the entire landfill, not merely the area surrounding the well. Second, the municipality has incurred a substantial liability through the consent agreement and seeks to recover a portion of the costs, a quintessential claim for contribution. Last, the holding in Browning-Ferris did not turn on the question of whether a plaintiff is eventually found to be innocent. All claims by potentially liable parties were claims for contribution and could be brought solely under §113(f). The court denies without prejudice the contractor's motion for summary judgment on the contribution issue pending further briefings on whether the equitable tolling doctrine should operate to toll §113(f)'s statute of limitations.

Counsel for Plaintiffs
George J. Weiner
McCutchen, Doyle, Brown & Enersen
1101 Pennsylvania Ave. NW, Ste. 800, Washington DC 20004
(202) 628-4900

Counsel for Defendant
Phebe S. Young
Bayard, Handelman & Murdoch
902 Market St., 13th Fl., Wilmington DE 19899
(302) 655-5000