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Reynolds Metals Co. v. Arkansas Power & Light Co.

ELR Citation: 26 ELR 21179
Nos. LR-C-95-281, 920 F. Supp. 991/42 ERC 1847/(E.D. Ark., 03/26/1996)

The court holds that a potentially responsible party (PRP) that incurred response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) may not bring a CERCLA §107(a) cost recovery suit against another PRP, but is limited to bringing a CERCLA §113(f) contribution suit. The court first notes that it appears that the plain language of §107(a), standing alone, supports plaintiff's effort to bring a direct cost recovery action against defendant, even though plaintiff is itself a PRP. The court refuses, however, to follow courts that have interpreted CERCLA to permit such a result, noting in a footnote that allowing a PRP to maintain a direct cost recovery action against another PRP could yield absurd results. Instead, the court believes that the text of §107(a) must be viewed in the context of CERCLA as a whole. The court thus holds that in view of CERCLA's overall remedial scheme and the substantive changes made by the Superfund Amendments and Reauthorization Act of 1986 (SARA), in cost recovery litigation between plaintiff PRPs and defendant PRPs, §§107(a) and 113(f) must be read together, and that under this construction, a cost recovery action brought by a PRP against another PRP must be viewed only as a contribution action under § 113(f). The court holds that any claim that would reapportion cleanup costs among PRPs is a quintessential claim for contribution. While the defendant PRP's liability is initially predicated on §107(a), its ultimate liability—the amount it will be required to pay plaintiff PRP—will be limited by the equitable share requirement of §113(f). In the wake of SARA, CERCLA itself seems to recognize that cost recovery litigation between PRPs will be brought in the context of §113(f), rather than §107(a). Thus, the court holds that plaintiff can only maintain an action against defendant under §113(f), and dismisses plaintiff's §107(a) claim. The court notes that there is no prejudice to plaintiff because if plaintiff is ultimately found not to be responsible for any of its response costs, it will be entitled to recover all of those costs from defendant in the §113(f) action.

The court next holds that plaintiff cannot maintain a contribution action under the Arkansas Remedial Action Trust Fund Act (RATFA) against defendant. Under RATFA's plain language, a claimant can bring a contribution claim under §520(a) only if the claimant's remedial action was undertaken in response to an administrative or judicial order initiated pursuant to state law that authorizes the Arkansas Department of Pollution Control and Ecology (ADPCE) to institute remedial actions for which contribution is available. Plaintiff has not alleged that its cleanup of the site was in any way undertaken pursuant to an ADPCE-issued order, and this deficiency is fatal to any §520(a) contribution claim. The court next notes that the proper interpretation of §520(b)—which permits contribution actions by persons acting pursuant to administrative or judicially approved settlements, but contains no explicit reference to the ADPCE—is more problematic. The court concludes that the language cannot be viewed in isolation, but must be construed within the context of the statute as a whole, so as to best effectuate the legislative intent. Based on the statute's primary purposes, the court holds that any RATFA contribution action, including one brought under §520(b), is available only when a private person has incurred response costs as a result of the ADPCE's efforts to enforce the Act. That a person may have incurred CERCLA-related response costs to which that person is entitled to contribution under CERCLA is simply irrelevant to whether that person can recover those costs in a RATFA contribution action; indeed, RATFA expressly forbids such a result. Thus, because plaintiff does not allege that it has, as yet, incurred any RATFA-related remediation costs, the court holds that it may not pursue a RATFA contribution claim against defendant.

Counsel for Plaintiff
Ray F. Cox Jr.
Wright, Lindsey & Jennings
200 W. Capitol Ave., Ste. 2200, Little Rock AR 72201
(501) 371-0808

Counsel for Defendant
Scott J. Lancaster
Friday, Eldredge & Clark
2000 First Commercial Bldg.
400 W. Capitol Ave., Little Rock AR 72201
(501) 376-2011