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Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp.

ELR Citation: 29 ELR 20065
Nos. 97-3163, 153 F.3d 344/(6th Cir., 08/31/1998)

The court holds that potentially responsible parties (PRPs) compelled to initiate a hazardous waste site cleanup are precluded from joint and several cost recovery from other PRPs under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §107(a), and, thus, are limited to actions for contribution under CERCLA §113(f). The court first holds that any person may seek to recover costs under §107(a), but that it is the nature of the action that determines whether the action will be governed exclusively by §107(a) or by §113(f) as well. Section 113(f) is incorporated under §107, and, therefore, a §113(f) action is an action to recover the necessary costs of response by any other person, as referred to in §107. The court next holds that cost recovery actions by parties not responsible for site contaminations are joint and several cost recovery actions governed exclusively by §107(a), but claims by PRPs seeking costs from other PRPs are necessarily actions for contribution governed by §113(f).

The court then holds that based on common-law definitions of "contribution" as well as the claim pleaded by the PRPs, it is apparent that their claim is a claim for contribution. Contribution, under both the common law and §113(f), applies in claims such as these where a PRP has been compelled to pay for response costs for which others are also liable, and who seeks reimbursement for such costs. It is disingenuous at best for the PRPs, who have not challenged their PRP status, to claim that their action is not one for contribution simply because the U.S. Environmental Protection Agency was not forced to take them to court. In fact, the PRPs have in all respects conceded their liability under CERCLA by failing to assert their innocence and recognizing that if this court were to permit them to seek joint and several cost recovery, the defendants would be able to seek contribution against them. In addition, the court's reading of the statute is supported by the Act's legislative history and is consistent with other circuit court decisions. Furthermore, precluding PRPs from seeking joint and several cost recovery will not impede CERCLA's goals of prompt and efficient cleanups. Like §107(a), §113(f) has its own incentives for quick cleanup and cooperation with the government.

Counsel for Plaintiffs
Thomas W. Downs
Swidler & Berlin
3000 K St. NW, Ste. 300, Washington DC 20007
(202) 424-7500

Counsel for Defendants
Louis E. Tosi
Shumaker, Loop & Kendrick
N. Courthouse Sq.
1000 Jackson St., Toledo OH 43624
(419) 241-9000
Jeremy D. Heep
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Daughtrey and Cole, JJ.