Wehner v. Syntex Agribusiness, Inc.

No. 83-642 (E.D. Mo. April 1, 1985)

The court holds that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) authorizes contribution among responsible parties. The court rules that federal law governs the issue, since the action is based on a federal statute. Section 107(e)(2) of CERCLA expressly preserves actions by responsible parties against other persons under the Act or other law. The legislative history of the provision indicates that it was intended to authorize rights of contribution.

[Related cases appear at 14 ELR 20212 & 20265 and 15 ELR 20210 & 20346.]

Counsel are listed at 15 ELR 20210.

[15 ELR 20346]

Filippine, J.:

Memorandum and Order

This matter is before the Court on the motion of the defendants Northeastern Pharmaceutical and Chemical Company, Inc., Edwin Michaels, John Lee, and Milton Turkel ("NEPACO, et al.") to dismiss the cross-claim of defendant Independent Petrochemical Corporation ("IPC").

This is a private action for response costs brought pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), codified at 42 U.S.C. §§ 9601-9657. Plaintiffs seek to recover allowable response costs under 42 U.S.C. § 9607 incurred by them as a result of their exposure to the chemical agent commonly called dioxin. Defendant IPC has filed a cross-claim against NEPACO, et al. pursuant to Rule 13(g) of the Federal Rules of Civil Procedure. IPC in its cross-claim seeks indemnification or contribution for all amounts, or such part thereof as this Court finds equitable, that may be adjudged to be due to plaintiff from IPC in this action. NEPACO, et al. has moved to dismiss this cross-claim asserting that CERCLA does not allow contribution. The basis for this assertion by NEPCO, et al. rests upon their belief that Missouri law governs this action and their further belief that Missouri law does not allow for either contribution or indemnity among joint tortfeasors.

Because this action is based upon a federal statute, it is federal law that must determine the existence of contribution under CERCLA. See, e.g., Northwest Airlines v. Transport Workers Union, 451 U.S. 77, 90 (1981); Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 638 (1981). The Court will look to the terms of the statute in determining whether a right to contribution exists. CERCLA implicitly recognizes a right to contribution. Title 42 of the United States Code § 9607(e)(2) provides:

Nothing in this title . . . shall bar a cause of action that an owner or operator or any other person subject to liability under this section, or a guarantor, has or would have, by reason of subrogation or otherwise against any person.

A provision similar to the above-quoted section was included in the House version of what became CERCLA. H.R. 7020, 96th Cong., 2d Sess. Representative Gore in speaking about the House version stated that any defendant who paid all the response costs to a plaintiff "would then have the right to go against the other 'non apportioned' defendants for contribution. . . ." 126 Cong. Rec. 26,785 (1980) (statement by Rep. Gore). In addition, the Justice Department has interpreted § 9607(e)(2) as allowing for contribution among joint tortfeasors. 126 Cong. Rec. 31,966 (1980). Furthermore, both reported case law, United States v. Chem-Dyne Corp., 572 F. Supp. 802, 807 n. 3 [13 ELR 20986] (S.D. Ohio 1983) and scholarly commentary, Note, The Right to Contribution for Response Costs under CERCLA, 60 Notre Dame Law. 345, 361 (1985); Comment, Generator Liability under Superfund for Clean-Up of Abandoned Hazardous Waste Dumpsites, 130 U. Pa. L. Rev. 1229, 1266 n. 184 (1982), support the view that 42 U.S.C. § 9607(e) provides for contribution. Thus, this Court rules that CERCLA allows contribution among joint tortfeasors and will deny the motion to dismiss the cross-claim of IPC.

Accordingly,

IT IS HEREBY ORDERED that the motion of Northeastern Pharmaceutical and Chemical Company, Inc., Edwin Michaels, John Lee, and Milton Turkel to dismiss the cross-claim of Independent Petrochemical Corporation be and is DENIED.