Jump to Navigation
Jump to Content

Bernstein v. Bankert

ELR Citation: 43 ELR 20185
Nos. 11-1501, -1523, (7th Cir., 07/31/2013)

The Seventh Circuit held that the trustees of a fund established to finance and oversee the cleanup of a contaminated site near Zionsville, Indiana, may go forward with their lawsuit under CERCLA to recover cleanup costs from the former owners of the site. To the extent that the trustees seek to recover costs they incurred executing an EPA administrative order on consent (AOC), their action is a cost recovery action, not a contribution action. To meet the statutory trigger for a contribution action, the nature, extent, or amount of a PRP's liability must be decided, determined, or settled, at least in part, by way of agreement with EPA. That did not happen here. Although the trustees agreed to perform certain actions to remedy environmental contamination, they did not settle the issue of liability for that contamination, which is what CERCLA requires. The court therefore rejected arguments that the mere act of signing a settlement agreement amounts to a resolution of liability under CERCLA. Accordingly, because the removal action called for by the 2002 AOC was ongoing when the suit was filed, the three-year limitation period under had not yet begun to run, let alone expired. Thus, contrary to the findings of the lower court, the trustees' cost recovery action for expenses incurred under the AOC was timely.