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Kalamazoo River Study Group v. Rockwell Int'l Corp.

ELR Citation: 28 ELR 21139
Nos. 1:95-CV-838, 991 F. Supp. 890/(W.D. Mich., 01/15/1998) Availability of CERCLA §107 cost recovery action

The court holds that Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §107 cost recovery actions are not available to potentially responsible parties (PRPs) and that divisibility of harm is not a defense to §113 contribution claims. The court first holds that CERCLA does not permit a claim by a plaintiff-PRP against defendant-PRPs for joint and several liability. All of the circuit courts that have considered this issue have held that PRPs can sue only for contribution under §113. Limiting PRPs to contribution claims is consistent with the language and purpose of CERCLA. If a PRP were able to bring a §107 claim for joint and several liability against another PRP, it could recoup all of its expenditures regardless of fault. In addition, permitting a PRP to bring a §107 claim would render §113(f) meaningless.

The court next denies defendants' request for an order declaring that they are not liable for polychlorinated biphenyl contamination found upstream of their facilities. Divisibility of harm is a defense to a cost recovery claim under §107 when liability is joint and several. It is not a defense to a §113 contribution claim. In light of the determination that the plaintiff is limited to a contribution action against defendants, divisibility of harm has no relevance at the liability phase of this case.

Counsel for Plaintiff
Alan C. Bennett
Law, Weathers & Richardson
Bridgewater Pl.
333 Bridge St. NW, Ste. 800, Grand Rapids MI 49504
(616) 459-1171

Counsel for Defendants
Kathryn J. Humprey, Joseph C. Basta
Dykema Gossett
400 Renaissance Ctr., Detroit MI 48243
(313) 568-6800