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Catellus Dev. Corp. v. L.D. McFarland Co.

ELR Citation: 26 ELR 20920
Nos. No. 91-685-JO, 910 F. Supp. 1509/42 ERC 1458/(D. Or., 12/19/1995) PRP may bring CERCLA §107 action

The court holds that potentially responsible parties (PRPs) may bring a cost recovery action under §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and are not limited to contribution actions under CERCLA §113. Because the plaintiffs were neither ordered by the U.S. Environmental Protection Agency to clean up the site nor sued by a nonliable party for cost recovery, their lawsuit falls outside §113(f)'s parameters, and the proper cause of action is under §107(a)(2)(B). The court notes that the distinction has little practical effect in this action, because the substance of the action is one for contribution under CERCLA. Therefore, the court will equitably apportion liability in the same manner as under §113(f)(1), because a contribution action under §107(a)(2)(B) provides the same remedy as a contribution action under §113(f)(1). The court next holds that plaintiffs' claims under the Oregon CERCLA are best construed as contribution actions. The Oregon CERCLA contribution provision does not contain the same limitations as §113(f)(1), and the cost recovery provision is limited to parties who are not themselves PRPs. The court next holds that plaintiffs may sue for restitution of response costs under the Resource Conservation and Recovery Act (RCRA) citizen suit provision, but notes that it will conform its decision on this issue to match the U.S. Supreme Court's decision in Meghrig v. KFC Western, Inc. (26 ELR 20820). The court also holds that CERCLA §113(g)(2)'s statute of limitations applies to RCRA citizen suits for restitution. RCRA contains no limitations provision, and case law dictates that federal courts should apply the most appropriate statute of limitation in such situations. Because plaintiffs' claim for restitution is essentially a cost recovery claim, the CERCLA statute of limitations for recovery of response costs is the relevant federal statute of limitations. If §113(g)(2)'s statute of limitations were not applied, a party time barred under CERCLA could circumvent the CERCLA statute of limitation merely by seeking the same response costs under RCRA.

[A prior decision in this litigation is published at 23 ELR 21487.]

Counsel for Plaintiffs
Steven R. Schnell
Black & Helterline
1200 The Bank of California Tower
707 SW Washington St., Portland OR 97205
(503) 224-5560

Counsel for Defendants
Richard S. Gleason
Stoel & Rives
900 SW 5th Ave., Ste. 2300, Portland OR 97204
(503) 224-3380