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Sherwin-Williams Co. v. ARTRA Group, Inc.

ELR Citation: 31 ELR 20420
Nos. CIV. A. S91-2744, 125 F. Supp. 2d 739/(D. Md., 01/12/2001)

The court holds that a paint manufacturer is entitled to contribution and declaratory relief under the Comprehensive Environmental Response, Compensation, and Liability Act from the former owner of a hazardous waste site south of Baltimore, Maryland. The court first holds that because the manufacturer owns the site and is a potentially responsible party, it may not recover its response costs from the former owner. However, the manufacturer is entitled to contribution costs. The court next holds that the manufacturer's claim for contribution costs is not barred by the statute of limitations. Regardless of whether the soil extraction that was completed on September 23, 1988, is considered a removal or a remedial action, it was either within the statute as part of a continuous removal action, or was the initiation of a remedial action that occurred within three years of the completion of removal activity in February 1988. The court further holds that the manufacturer presented ample evidence that there was a disposal and release of hazardous substances during the former owner's ownership of the site and that the manufacturer incurred costs to clean up hazardous substances on the property. The court additionally holds that the manufacturer met its burden of showing that at least some of its response actions substantially complied with the national contingency plan. The court moreover holds that because the former owner was liable to the manufacturer for future response costs, the manufacturer is also entitled to a mandatory entry of a declaratory judgment for future response costs regardless of the speculative nature of those costs. The court goes on to hold, however, that the manufacturer may not seek common-law indemnification or common-law contribution. Further, the manufacturer's negligence claim is barred by the statute of limitations. And while the manufacturer's claim for contract indemnification for any costs it incurred prior to September 1988, is time barred, the former owner is contractually obligated to pay the manufacturer for costs incurred after September 1988.

[Counsel not available at this printing.]