Jump to Navigation
Jump to Content

Rumpke of Ind., Inc. v. Cummins Engine Co.

ELR Citation: 27 ELR 20596
Nos. No. 96-1650, 107 F.3d 1235/(7th Cir., 02/19/1997)

The court holds that an owner of contaminated land may bring an action under §107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act to recover its direct response costs as long as it did not contribute to the presence of hazardous substances at the site, and that §113(f) does not bar a contribution action with respect to the site even though defendant-appellants were party to a settlement concerning a related site. The court first holds that the site owner may bring an action under §107(a) even though it is a potentially responsible party (PRP). In Akzo Coatings, Inc. v. Aigner Corp., 24 ELR 21254 (7th Cir. 1994), the court held that although a PRP must normally sue under §113, a landowner may bring a §107 action to recover for its direct injuries if it is not responsible for having caused hazardous materials to be spilled onto its property. Nothing in the language of §107(a) makes that subsection unavailable to a party suing to recover for direct injury to its own land where it is not trying to divide up its liability for someone else's injuries among other PRPs. In addition, where no prior cost recovery action or applicable order has been entered, it would be impossible to use §107(a) as a tool for obtaining an advantage for statute of limitations purposes. The court notes that if it turns out that the site owner in this case is not the innocent party it portrays itself to be, it will not qualify for the Akzo exception. Reading §107(a) as implicitly denying standing to sue even to landowners who did not create the hazardous conditions would come perilously close to reading §107(a) out of the statute. The court further holds that the contribution bar of §113(f) does not have a role in direct cost recovery actions under §107(a).

If the site owner is partially responsible for the site contamination, it must proceed under §113(f)(1), and the scope of the §113(f)(2) settlement bar would become important. The court holds, however, that the settlement decree regarding the related site does not address defendant-appellants' liability at other sites. Work at the site at issue in this case is apart in kind, context, and time from cleanup at the settlement's site. Because the decree is clear on its face, it is neither necessary nor appropriate to consider extrinsic evidence.

Counsel for Plaintiff
Frederick D. Emhardt
Plews, Shadley, Racher & Braun
1346 N. Delaware St., Indianapolis IN 46202
(317) 637-0700

Counsel for Defendants
Peter J. Rusthoven
Barnes & Thornburg
1313 Merchants Bank Bldg.
11 S. Meridian St., Indianapolis IN 46204
(317) 638-1313

Before BAUER, EASTERBROOK, and DIANE P. WOOD, Circuit Judges.