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Johnson County Airport Comm'n v. Parsonitt Co.

ELR Citation: 26 ELR 21102
Nos. 95-2159-EEO, 916 F. Supp. 1090/42 ERC 1467/(D. Kan., 02/05/1996)

The court holds that a Kansas municipal airport commission that leased part of airport property to a dry cleaning company is a potentially responsible party (PRP) under §107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and may only pursue a §113(f) contribution action for response costs incurred as a result of the dry cleaner's contamination of the leased property. The court first holds that the commission is precluded from asserting a §107 cost recovery claim against the dry cleaner because the commission is a PRP under §107(a). The commission owned the site when the improper storage and boil-over of dry cleaning solvents caused the release of a hazardous substance for which it incurred response costs. Furthermore, the commission is barred from asserting a §107 claim because it is a CERCLA-defined "person" and not a "state." Turning to the commission's request for leave to amend its complaint to bring a §113 claim, the court rejects the dry cleaner's argument that the commission must have incurred liability under §107 to bring a §113 claim. The investigation costs that the commission has already incurred are recoverable response costs under CERCLA. The court next rejects the dry cleaner's argument that the commission has no valid claim under CERCLA and is, therefore, not entitled to a declaratory judgment that the dry cleaner is obligated to pay all future investigative and remediation costs at the facility. The commission has a valid and present claim under §113(f). Finally, the court holds that it has ample justification to exercise supplemental jurisdiction over the commission's breach of contract claims that relate to the hazardous release.

Counsel for Plaintiff
Mark D. Hinderks
Stinson, Mag & Fizzell
7500 W. 110th St., Overland Park KS 66210
(913) 451-8600

Counsel for Defendant
James O. Neet Jr.
Shook, Hardy & Bacon
One Kansas City Pl.
1200 Main St., Kansas City MO 64105
(816) 474-6550