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Emhart Industries, Inc. v. United States Department of the Air Force

ELR Citation: 41 ELR 20334
Nos. 11-023, (D.R.I., 10/31/2011) (Smith, J.)

A district court granted in part and denied in part the government's motion to dismiss a company's action for damages and declaratory relief in connection with dioxin contamination at the Centredale Manor Superfund site in Connecticut. The government argued that the company could not bring a CERCLA §107(a) claim for cost recovery because, pursuant to administrative settlements it has entered into with EPA, §113(f) contribution is the company's exclusive remedy. But the company did bring a §113(f) action, and it is entitled to plead a §107 claim in the alternative to ensure that it will be able to recover for its cleanup efforts at the site. Accordingly, the court denied the government's motion to dismiss the §107 claim. The court, however, granted the government's motion to dismiss the company's equitable indemnity claim. Regardless of whether its claim sounds in tort or contract, the company failed to show a waiver of sovereign immunity. The court, therefore, lacks jurisdiction. In addition, the court dismissed without prejudice the company's right to assert divisibility.