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Sun Co. v. Browning-Ferris, Inc.

ELR Citation: 26 ELR 21199
Nos. 94-C-820-K, 919 F. Supp. 1523/42 ERC 1613/(N.D. Okla., 03/20/1996)

The court holds that a contribution claim under §113 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) brought by plaintiff potentially responsible parties (PRPs) that incurred cleanup costs in response to a U.S. Environmental Protection Agency (EPA) administrative order accrued at the time the PRPs paid more than their fair share of response costs. The court first holds that the plaintiffs are PRPs under CERCLA and, thus, are limited to contribution claims. The only cause of action available to a PRP seeking to recover from another PRP for cleanup costs is a §113(f) contribution action. Plaintiffs are PRPs because they admit generating the substances that were transported and ultimately deposited at the site, their wastes were present at the site at the time of the cleanup, and they failed to offer even a cogent argument that they are not PRPs. The court notes that plaintiffs are confined to bringing a §113(f) contribution action, regardless of how they plead their claims—it is the parties' status as PRPs that limits them to a §113 contribution claim. The court next holds that because plaintiffs incurred cleanup costs in response to an EPA CERCLA §106 administrative order, which is not one of the triggering events for the statute of limitations for §113 actions, the court must supply a triggering event for the accrual of the statute of limitations. The court rejects the notion that the PRPs are not subject to a statute of limitations, because the structure of CERCLA indicates a legislative intent to restrict cost recovery and contribution claims to definite periods of time. Congress did not intend to allow PRPs to keep other PRPs on the hook indefinitely. Following the Third Circuit, the court holds that absent a judgment, a cause of action for contribution does not arise until the party seeking contribution has paid more than her fair share of a common liability. The court holds that the same rule applies under Oklahoma law to plaintiff PRPs' state-law claim. Next the court examines how to determine what expenditures by plaintiffs are within the period of limitations. The court adopts the rule that if one co-obligor has made partial payments aggregating more than his share of the debt, but the statute of limitations has run as to some of those payments, he is entitled to judgment against his co-obligors for the full amount of payments on which the statute has not run, provided such sum is less than the defendant co-obligor's proportion of the debt, and the payments on which the statute has run are equal to or exceed the claimant's portion. The court next holds that since the PRPs are limited to a contribution action, they are not entitled to declaratory judgment under the CERCLA provision providing for declaratory relief in cost recovery suits. The court, however, notes that it retains inherent authority to fashion appropriate remedies in civil suits over which it has jurisdiction. The court therefore rules that a declaratory judgment would be appropriate, because the question of the appropriate apportionment scheme for past and future response costs presents a real controversy, and a ruling will clarify a legal question at issue and mitigate uncertainty. However, given the uncertainty as to the amount of response costs incurred within the limitations period and the amount likely to be incurred in the future, the court cannot issue a ruling defining the precise contours of an apportionment scheme. Finally, the court finds it premature to rule on the appropriate credit rule. Since the actual amount in controversy is unclear, it is not possible to determine which credit rule, the proportionate rule or the pro tanto rule, would be most equitable and efficacious in this case.

Counsel for Plaintiffs
William D. Perrine
Rhodes, Hieronymus, Jones, Tucker & Gable
Oneok Plaza
100 W. 5th St., Ste. 400, Tulsa OK 74121
(918) 582-1173

Counsel for Defendants
Robert A. Franden
Feldman, Hall, Franden, Woodard & Farris
1400 Park Ctr.
525 S. Main St., Tulsa OK 74103
(918) 583-7129