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Westinghouse Elec. Co. v. United States

ELR Citation: 38 ELR 20206
Nos. No. 4:03CV 861, (E.D. Mo., 07/29/2008)

A district court held that absent a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §107 suit that is still pending, a potentially responsible party (PRP) may not bring a CERCLA§113(f) contribution action unless the federal courts have already established the PRP's liability in a previous §107 suit or in a judicially approved settlement. The owner of contaminated property sought contribution from the site's prior owners under CERCLA §§107 and 113. Even though the state has sued the PRP twice under §107, both actions were dismissed before establishing the PRP's liability. The PRP argued that liability is not a prerequisite to bringing a §113(f)(1) action because that section contemplates bringing a contribution claim "during" a civil action, that is, before liability has been established. While this is correct for the case in which a civil action pursuant to §106 or §107 is pending, it makes no sense to apply this rule where the civil action has been dismissed. CERCLA liability must have been established in a qualifying civil action for a party to either bring or maintain a §113(f)(1) claim after that civil action has closed. In addition, although the PRP entered into an agreement with the state of Missouri to clean up the site, the agreement was not an "administrative settlement" under CERCLA §113. And a state-approved consent decree is null and void to the extent it purports to establish CERCLA liability because Missouri has no CERCLA authority.