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Pinal Creek Group v. Newmont Mining Corp.

ELR Citation: 27 ELR 21211
Nos. 96-16334, 118 F.3d 1298/(9th Cir., 07/02/1997) rev'd

The court holds that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not provide a party who is partly liable for the cleanup of a hazardous waste site with a claim against other potentially responsible parties (PRPs) for the joint and several recovery of all its cleanup costs. The court first holds that plaintiff-appellee is responsible only for that portion of the liability that it equitably should bear, while being entitled to hold other PRPs severally liable for each of their respective, equitable shares of the total costs. That is the essence of a claim for contribution, which is embedded in the text of §107. The legislative history of §113(f) supports the conclusion that in enacting that provision, Congress was only confirming and clarifying an existing claim for contribution under §107. This interpretation of the statute is consistent with the court's own precedent. And the majority of courts faced with this issue, in contexts identical to the case at bench, have also concluded that a PRP is not entitled to recover all its response costs from other PRPs, but instead is limited to asserting a claim for contribution. Accordingly, plaintiff-appellee is foreclosed from imposing joint and several liability on defendant-appellants, even with respect to any amount that may exceed plaintiff-appellee's own equitable share of the cleanup costs. If a group of defendant-PRPs is held jointly and severally liable for the total response costs incurred by a claimant-PRP, reduced by the amount of claimant-PRP's own share, those defendant-PRPs would end up absorbing all of the cost attributable to "orphan shares." There is no statutory support for such a rule. Even a modified rule, in which the joint and several liability of defendant-PRPs is reduced by that portion of the orphan shares that the claimant-PRP should equitably bear, could result in a chain reaction of multiple and unnecessary lawsuits.

The court notes that by trying to obtain the totality of its costs immediately (subject to subsequent contribution counterclaims), plaintiff-appellee seeks to avoid the delay (and burden-of-proof rules) implicit in §113(f)'s mechanism for the equitable allocation of costs among the PRPs. In addition, by arguing for joint and several liability, plaintiff-appellee attempts to avoid bearing any part of the cost attributable to orphan shares; however, §113 mandates the equitable allocation of all costs among the PRPs, without establishing any special per se rules. Finally, the court rejects plaintiff-appellee's argument that the court's holding would hamper CERCLA's policy of promoting rapid and voluntary environmental responses by private parties; that this holding would result in the absence of a statute of limitations for a contribution action by a PRP who incurs governmental action; and that if not allowed to bring a cost recovery claim for the totality of its cleanup costs, plaintiff-appellee would be left with no claim to assert against defendant-appellants.

[The district court's opinion is published at 26 ELR 21422. Briefs and pleadings in this litigation are digested at ELR BRIEFS & PLEADS. 66491.]

Counsel for Plaintiff
Nicholas J. Wallwork
Muchmore & Wallwork
2700 N. Central Ave., Ste. 1225, Phoenix AZ 85004
(602) 240-6699

Counsel for Defendants
Shane R. Swindle
Dalton, Gotto, Samson & Kilgard
National Bank Plaza
3101 N. Central Ave., Ste. 900, Phoenix AZ 85012
(602) 248-0088

Before Goodwin, Ferguson, and Tashima, JJ.