United States v. SCA Services of Indiana, Inc.

No. 1:89cv29 (865 F. Supp. 533, 39 ERC 1965) (N.D. Ind. October 3, 1994)

The court denies a motion to reconsider its decision that a company that incurred response costs at an Indiana site pursuant to a U.S. Environmental Protection Agency consent decree may bring a cost recovery action against nonsettling, third-party defendants under § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The third-party defendants filed their motion for reconsideration, arguing that Akzo Coatings, Inc. v. Aigner Corp., 24 ELR 21254 (7th Cir. 1994), United Technologies Corp. v. Browning-Ferris Industries, Inc., 24 ELR 21356 (1st Cir. 1994), and Town of Munster v. Sherwin-Williams Co., 24 ELR 21108 (7th Cir. 1994), suggest that the court incorrectly held that the company may maintain a cost recovery action. The court first addresses the third-party defendants' claim that it should hold the company liable because the company allegedly owned the site at which wastes were dumped. In Akzo, the Seventh Circuit allegedly held that a plaintiff seeking cost recovery was liable for response costs because it sent waste to the site at issue in that case. The Seventh Circuit then held that the plaintiff could not pursue a cost recovery claim because it was liable "in some measure" and was seeking to apportion liability for an injury to which it contributed. The court in this case notes that the party seeking cost recovery in Akzo admitted its liability for depositing solvents at the site in question. The court finds unsupported the third-party defendants' contention that the Seventh Circuit held the party seeking cost recovery in Akzo liable simply because it sent waste to the site. The court notes that in this case, the company seeking cost recovery never admitted liability, had never been adjudicated a liable party, and entered into a consent decree that expressly did not constitute an admission. The court rejects the third-party defendants' argument that the court should have found the company to be a liable party, and thus limited to contribution actions, because liability under CERCLA is strict. Even though liability is strict under CERCLA, legal liability cannot attach until a party has either admitted liability or has been adjudicated liable. Even if the court construed the company's allegations in its complaint as admissions, the third-party defendants' argument that the company admitted that it is a responsible party by virtue of evidence obtained via discovery is meritless. Evidence does not establish a fact as being true. In all likelihood, the court would have to conduct an extensive trial before it could determine whether the company was a responsible person.

The court next addresses the third-party defendants' observation that the Seventh Circuit in Akzo cited and declined to follow two decisions the court in this case discussed in its prior decision — Burlington N.R.R. v. Time Oil Co., 738 F. Supp. 1339 (W.D. Wash. 1990), and Key Tronic Corp. v. United States, 21 ELR 21443 (E.D. Wash. 1990). The court notes that contrary to the third-party defendants' implication, it did not rely on those cases. The court discussed Key Tronic to show that some courts were permitting cost recovery actions against settling parties where CERCLA's policy of encouraging settlements would not be frustrated. The court holds that Key Tronic was not relevant to the court's prior decision, because the case before the court never involved an attempted cost recovery action. The court discussed Burlington to facilitate its discussion of the distinction between a § 107 action and a § 113 action. The court did not endorse any of the holdings or conclusions of the Burlington court, and Burlington was not pertinent to the court's prior decision. The court further notes that its prior decision was available to the Seventh Circuit at the time of the Akzo decision. The fact that Akzo did not cite the court's decision buttresses the conclusion that Akzo does not directly contradict that decision.

The court next turns to the third-party defendants' claim that United Technologies is contrary to the court's prior decision. In United Technologies, the First Circuit held that a claim by parties to a consent decree with the United States against nonsettling parties for cost recovery was a contribution action. The First Circuit noted that the parties seeking cost recovery had admitted that they were liable parties. The court in this case holds that United Technologies does not apply to this case, because the United Technologies parties admitted liability and entered into a consent decree before the effective date of CERCLA § 122, which provides that participation in a § 122 settlement is not an admission of liability. In this case, the company has not admitted liability, and the consent decree provides that the company may pursue cost recovery and contribution claims against certain nonparties. Thus, no basis exists for the court to conclude that the company's cost recovery claim is, in actuality, solely a claim for contribution.

The court next holds that Sherwin-Williams supports the court's prior decision. In Sherwin-Williams, no disputed issue existed on whether the party seeking cost recovery was a liable party or whether it could properly bring a § 107 action. The court was concerned with what defenses the defendant could assert against the § 107 action. If the Seventh Circuit believed that the § 107 action was, as the third-party defendants claim, merely a § 113 action in disguise, the Seventh Circuit would not have devoted an entire opinion to analyzing § 107 to determine whether the defendant could properly assert equitable defenses. Finally, the court denies the third-party defendants' motion for certification of interlocutory appeal. The court holds that if the third-party defendants honestly believed that Sherwin-Williams was in direct conflict with the court's prior decision, they should have filed a motion for certification shortly after the Seventh Circuit rendered that decision. Additionally, the court rejects the third-party defendants assertion that a decision by the Seventh Circuit will materially advance the ultimate termination of the litigation by simplifying pretrial procedures.

[The court's prior decision is published at 24 ELR 21437.]

Counsel for Plaintiffs
Deborah M. Leonard, David H. Miller, Ass't U.S. Attorneys
U.S. Attorney's Office
3128 Federal Bldg.
1300 S. Harrison St., Fort Wayne IN 46802
(219) 422-2595

Maureen M. Katz
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Percy L. Angelo
Mayer, Brown & Platt
190 S. La Salle St., Chicago IL 60603
(312) 782-0600

[25 ELR 20404]

WILLIAM C. LEE, District Judge.

This matter is before the court on a motion to reconsider which was filed by the third-party defendants on August 1, 1994.¹ The parties completed briefing the motion on September 30, 1994. The third-party defendants have also filed, in the alternative, a motion for certification of interlocutory appeal, pursuant to 28 U.S.C. § 1292(b).

Discussion²

On December 20, 1993, the third-party defendants in this case, with the exception of United Tech Auto and Essex Group, Inc., filed a motion to dismiss SCA's third-party complaint. In support of their motion to dismiss, the third-party defendants argued that even though SCA had labeled one of its claims as a claim for cost recovery, pursuant to § 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9607(a) ("CERCLA"), the claim was in essence a claim for contribution which was barred by the three-year statute of limitations set forth in § 113(g)(3).³

On April 18, 1994, this court entered an order (the "April Order") in which the third-party defendants' motion to dismiss was denied in part and granted in part. Specifically, this court found that even though SCA's claims for contribution were time-barred, SCA was entitled to bring an action under [25 ELR 20405] § 107(a)(4)(B) to attempt to recover its response costs from potentially liable third parties.

In support of its present motion to reconsider, the third-party defendants argue that three recent appellate decisions suggest that this court incorrectly held that SCA may maintain a cost recovery action. Specifically, the third-party defendants have directed the court's attention to: Akzo Coatings, Inc., v. Aigner Corp., 30 F.3d 761 (7th Cir. 1994); United Technologies Corp. v. Browning-Ferris Industries, Inc., 33 F.3d 96 (1st Cir. 1994); and Town of Munster, Ind. v. Sherwin-Williams Co., Inc., 27 F.3d 1268 (7th Cir. 1994). The court will now discuss each of these cases in turn.

A. AKZO COATINGS, INC. V. AIGNER CORP.

A summary of the facts and holding of Akzo is as follows. In 1988, the federal Environmental Protection Agency ("EPA") issued a unilateral administrative order requiring Akzo and other companies to perform clean-up work at a hazardous waste site (the "Fisher-Calo site"). Akzo complied with the EPA's order, incurring costs in excess of $ 1.2 million.

In May 1990, approximately thirty-five companies, including Akzo, that had generated wastes disposed of at the Fisher-Calo site initiated efforts to determine the extent of the liability of all "potentially responsible parties" ("PRPs"). Akzo determined that it was not liable for any additional contamination of the Fisher-Calo site, and withdrew from the group in February 1991.

The EPA began to negotiate with the PRPs to implement the required clean up, and by the end of 1991 it had finalized an agreement with more than 200 PRPs. The EPA filed suit against these PRPs in late December 1991 and asked the court to approve the proposed consent decree it filed contemporaneously with its complaint. Pursuant to the decree, the settling PRPs agreed to clean up the site and to compensate the EPA for some of the costs it had incurred. In late February 1992, the district court approved the consent decree. Although Aigner was a party to the consent decree, Akzo did not join the settlement.

In 1991, Akzo brought suit against Aigner. Counts I and IV were brought pursuant to § 107(a) for statutory response costs; Counts II and V sought contribution pursuant to § 113(f). Akzo Coating, Inc. v. Aigner Corp., 803 F. Supp. 1380, 1381 (N.D.Ind. 992) (Judge Miller). The defendants filed a motion to dismiss (which the district court converted to a motion for summary judgment) claiming that since they had entered into a consent decree, § 113(f)(2)⁴ protected them against contribution actions. The plaintiffs in Akzo contended that § 113(f)(2) did not protect the settling parties because the matters covered by the settlement differed from those covered in the plaintiffs' complaint. 803 F. Supp. at 1384. Plaintiffs claimed that they incurred response costs in connection with two activities, neither of which were covered by the consent decree: the requirements of the 1988 administrative order issued against the plaintiffs, and the plaintiffs' voluntary investigation of contamination and related activities at the facility. Id. at 1386.

The district court rejected the plaintiffs' arguments and found that the activities and costs on which the plaintiffs' complaint was founded was covered by the consent decree. Id. As the claims in the plaintiffs' complaint were held to be the same as "those matters addressed in the settlement", the district court concluded that § 113(f)(2) protected the defendants from suit; therefore, the court granted summary judgment for the defendants. Id. at 1388.

Akzo appealed the district court's grant of summary judgment, renewing its argument that its suit was really one for direct cost recovery brought under § 107(a) rather than a suit for contribution under § 113(f)(1). In analyzing this argument, the Seventh Circuit Court of Appeals first noted that "Akzo itself is a party liable in some measure for the contamination at the Fisher-Calo site, and the gist of Akzo's claim is that the costs it has incurred should be apportioned equitably amongst itself and the others responsible. Complaint PP10, 11. That is a quintessential claim for contribution." 30 F.3d at 764. The Seventh Circuit then held that "[w]hatever label Akzo may wish to use, its claim remains one by and between jointly and severally liable parties for an appropriate division of the payment one of them has been compelled to make. Akzo's suit accordingly is governed by section 113(f)." Id.

Even though the Seventh Circuit held that in Akzo the facts indicated that it was a "quintessential claim for contribution", the Court acknowledged that on other facts Akzo may have been able to pursue a cost recovery action. The Court specifically noted that:

If, for example, all of Akzo's solvents were deposited at Two-Line Road while Aigner's were deposited at a different facility, Akzo's claim for cleaning up the Two-Line Road site looks less like one for contribution and more like a section 107 cost recovery action. But the basis for holding Aigner liable in that scenario escapes us. Only the hypothesis that the whole Fisher-Calo site is the proper unit of analysis, or that both Akzo and Aigner sent solvents to Two-Line Road, would give Akzo a legitimate claim against Aigner. Either way, Akzo is seeking to apportion liability for an injury to which it contributed. Akzo reminds us that in Count IV of its complaint, it seeks total recovery of the voluntary costs it incurred in conjunction with the other PRPs who sought to study and delineate their potential liability for further action at the Fisher-Calo site. Akzo bears none of the responsibility for these costs, it argues, and therefore its claim is necessarily not one for contribution. Even if that rationale does renderCount Four something other than a claim for contribution (an issue we need not decide), it does not necessarily clear a path to recovery. See United States v. Hardage, 982 F.2d 1436, 1448 (10th Cir. 1992) (costs borne by private party in investigating and developing remedial alternatives for purposes of defending against government's suit are not necessary to containment of polluted site and thus are not "necessary" response costs recoverable under section 107(a)(4)(B)), cert. denied, U.S. , 114 S. Ct. 300, 126 L. Ed. 2d 248 (1993); see also Key Tronic v. United States, U.S. , , 114 S. Ct. 1960, 1968, 128 L. Ed. 2d 797 (1994). In any event, because Akzo's voluntary response costs were aimed at a permanent clean-up of the site, we believe them barred as "matters addressed" by the Accurate Partitions consent decree. See infra at 767.

30 F.3d at 765 and n. 6.

Thus, the Seventh Circuit acknowledged, without deciding, that under different facts a party that incurred response costs may have "something other than a claim for contribution." However, Akzo was not able to pursue a cost recovery claim for two reasons: (1) it was a "party liable in some measure" as it had deposited solvents at the Fisher-Calo site; and (2) it was seeking to "apportion liability for an injury to which it contributed."

Having decided that Akzo, a liable party, was seeking contribution, the Seventh Circuit then proceeded to decide whether the contribution Akzo was seeking was for "matters addressed" by the consent decree that Aigner had signed, which would make the claim barred by § 113(f)(2)'s "contribution protection" language. The Court ultimately reversed the district court in part because it found that the work Akzo was compelled to perform was not a "matter addressed" by the settlement, but that Akzo's voluntary efforts toward long-term clean-up were of the nature [25 ELR 20406] of "matters addressed" by the settlement. 30 F.3d at 770.

In their motion to dismiss, the third-party defendants focus on the fact that this court noted that SCA's claims against the third-party defendants were not contribution claims because SCA had never admitted liability nor had it ever been adjudicated as being a liable party. See 849 F. Supp. at 1283. The third-party defendants claim that in Akzo "the Seventh Circuit observed that the plaintiff was 'liable' for response costs under CERCLA simply because it sent waste to the site, thus meeting the simple Section 107(a) requirements." The third-party defendants then suggest that this court should find SCA a liable party because SCA allegedly owned the Site at which wastes were dumped.

Although this court obviously does not have the record in the Akzo case before it, it seems readily apparent from the language of the Seventh Circuit's opinion that Akzo was not disputing the fact that it was a generator of waste at the Fisher-Calo facility and was thus a liable party. See 30 F.3d at 765 (wherein the Court cites the Complaint at PP10, 11 in support of its statement that "Akzo itself is a party liable in some measure for the contamination at the Fisher-Calo site".) Rather, it appears that Akzo admitted its liability for depositing solvents at a particular portion of the Fisher-Calo site, the Two-Line Road facility. It was the Two-Line Road facility that was the subject to the EPA's 1988 unilateral administrative order compelling Akzo to perform clean-up operations. Akzo completed this required work but then withdrew from the group that ultimately entered into the consent decree after "concluding that it was not liable for any contamination of the Fisher-Calo site beyond the Two-Line Road facility." 30 F.3d at 763 (emphasis provided). Thus, this court finds that the third-party defendants' contention that the Seventh Circuit found Akzo to be a liable party "simply because it sent waste to the site" to be unsupported by the language of the opinion. Clearly, the Seventh Circuit found Akzo to be a liable party because Akzo had admitted liability, at least as to a portion of the site.

In the present case, this court, in its April Order, stated that "it is important to note that SCA has never admitted liability." 849 F. Supp. at 1282. The April Order also quoted the Consent Decree wherein it stated that SCA "denies liability under Federal or State statutory or common law and has agreed to enter into this Consent Decree to avoid the costs of litigation. This Consent Decree is not and shall not constitute an admission or adjudication of any fact or conclusion of law or a waiver of any right or defense of the Settling Defendant with respect to any matter." Id.

Contribution, as the Seventh Circuit stated in Akzo, 30 F.3d at 764, is a claim "by and between jointly and severally liable parties for an appropriate division of the payment one of them has been compelled to make." As SCA had never admitted liability, had never been adjudicated as a liable party, and had entered into a consent decree that expressly was to not "constitute an admission" but was only entered into to "avoid the costs of litigation", this court found it "difficult, if not impossible, to view SCA's claim against the third-party defendants as a claim for contribution." 849 F. Supp. at 1283.

The third-party defendants claim that this court should have found SCA to be a liable party, and thus limited to contribution actions, because liability under CERCLA is strict and, accordingly, no adjudication or admission of liability is necessary.⁵ Clearly, the third-party defendants have stretched the concept of strict liability too far. Even though liability is strict under CERCLA, it is obvious that legal liability cannot attach until a party has either admitted liability or has been adjudicated as liable. Strict liability is simply "liability without fault", Black's Law Dictionary 1422 (6th ed. 1990), not liability without adjudication. Even in a strict liability case it is still necessary for there to be a determination that the conditions giving rise to strict liability were, in fact, present. For example, in product liability cases "it is essential to prove that the product was defective when placed in the stream of commerce." Id.

Liability is established under § 107(a) of CERCLA if: (1) the site in question is a "facility" as defined in § 101(9); (2) the defendant is a responsible person under § 107(a); (3) a release or a threatened release of a hazardous substance has occurred; and (4) the release or the threatened release has caused the plaintiff to incur response costs. Town of Munster, Ind. v. Sherwin-Williams, 27 F.3d 1268, 1273 (7th Cir.1994); Kerr-McGee Chemical v. Lefton Iron & Metal, 14 F.3d 321, 325 (7th Cir.1994).

The third-party defendants argue that SCA claims in its complaint that from 1973 to 1976, the Site constituted a facility, that there were hazardous substances stored at the Site and that there was a release of such hazardous substances. See SCA Complaint at PP4-6. The third-party defendants also cite to SCA's responses to interrogatories and the deposition testimony of one of the general managers of the Site in an attempt to show that SCA "is a responsible person under § 107(a)". Even if the court found it proper to construe SCA's allegations in its complaint as admissions, the third-party defendants' argument that SCA has admitted it is a responsible party by virtue of evidence obtained via discovery is meritless. The evidence the third-party defendants rely upon is simply that: evidence. It does not establish the fact as being true. In all likelihood, this court would have to conduct a extensive trial before it could be determined whether SCA was a "responsible person". In fact, avoiding this expense is precisely the reason SCA entered into a settlement with the government.⁶ Thus, in sum, this court finds the third-party defendants' argument that SCA has admitted liability, or should somehow be deemed to be strictly liable, to be completely without merit.

Next, this court will discuss the third-party defendants' observation that the Seventh Circuit cited, and declined to follow, two decisions which were discussed in this court's April Order: Burlington N.R.R. Co. v. Time Oil Co., 738 F. Supp. 1339, 1342-43 (W.D.Wash. 1990), and Key Tronic Corp. v. United States, No. C-89-694-JLQ, Order at 15, (E.D.Wash. Aug. 9, 1990), rev'd on other grounds, 984 F.2d 1025 (9th Cir.1993), aff'd in part, rev'd in part, and remanded, U.S. , 114 S. Ct. 1960, 128 L. Ed. 2d 797 (1994). First, it is important to note that, contrary to the third-party defendants' implication, this court did not rely on these two [25 ELR 20407] decisions in its April Order. Rather, the Key Tronic case was discussed to show that even though the courts generally were not permitting cost recovery actions against settling parties, some courts were nevertheless permitting such actions in cases where CERCLA's policy of encouraging settlements would not be frustrated.

The case before this court has never involved an attempted cost recovery action against a settling party and thus, Key Tronic was not relevant to this court's decision. Key Tronic (and numerous other cases involving cost recovery actions against settling parties) was discussed by this court for two purposes. One, to explain the different factual patterns that were being confronted by the courts, which differing facts were requiring the courts to arrive at apparently conflicting decisions; and two, to set forth the courts' reasoning in these cases so as to emphasize the point that the purpose of the bar against contribution actions is to protect settling parties from contribution.

Likewise, the Burlington case was discussed by this court to facilitate its discussion of the distinction between a § 107 action and a § 113 action.⁷ This court did not endorse any of the holdings or conclusions of the Burlington court, and expressly noted that Burlington was a "contribution protection" case, i.e., a case in which a non-settling party was asserting a cost recovery action against a settling party. As such, the Burlington case was not pertinent to this court's ultimate conclusion in its April Order.

As a final note on this subject, this court would like to point out that its April Order is published at 849 F. Supp. 1264, and was readily available to the Seventh Circuit at the time of its decision in Akzo (and was probably even available to counsel prior to the May 5, 1994 oral arguments). If Akzo is as "on point" as the third-party defendants suggest, such that Akzo would require this court to reverse its ruling in the April Order, it is surprising that the Seventh Circuit did not discuss this court's decision and then express an opinion on its correctness. While definitely not a controlling factor, the fact that Akzo did not cite this court's decision buttresses the conclusion that Akzo does not directly contradict this court's April Order, as the third-party defendants have argued.

B. UNITED TECHNOLOGIES CORP. V. BROWNING-FERRIS INDUS.

The court will now discuss the second case which the third-party defendants claim is contrary to this court's April Order: United Technologies Corp. v. Browning-Ferris Indus., 33 F.3d 96 (1st Cir. 1994). In United Technologies, the plaintiffs entered into a Consent Decree with the United States and the State of Maine in which the plaintiffs agreed to undertake and complete clean-up work at a waste site. The plaintiffs then filed a suit under § 107(a) against various defendants attempting to recover their response costs. The defendants filed a motion for summary judgment arguing that the plaintiffs were limited to a contribution action under § 113, and that the claim was time barred due to § 113(g)(3)'s three year statute of limitations.

In a Report and Recommendation, the Magistrate Judge granted the defendants' motion for summary judgment, holding that the plaintiffs were limited to a contribution action.⁸ The District Court adopted the Magistrate Judge's Report and Recommendation,⁹ and the plaintiff appealed the case to the First Circuit Court of Appeals. The First Circuit discussed the "contours of contribution" and decided that the word "contribution" in § 113 was to be given its generally accepted legal meaning. 33 F.3d at 99. As per this accepted legal definition, contribution "refers to a claim 'by and between jointly and severally liable parties for an appropriate division of the payment one of them has been compelled to make'". Id. (quoting Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d at 764 (7th Cir. 1994)). The First Circuit then held that "bearing in mind that appellants are by their own admission liable parties, their claim against Browning must be classified as an action for contribution." Id. at 101 (emphasis added).

As is readily apparent, United Technologies is not applicable to the case at bar for several reasons. First, even though the plaintiffs in United Technologies were settling parties, like SCA, the United Technologies plaintiffs had admitted liability and were, for that reason, limited to a contribution action. In the present case, as this court has already noted several times, SCA has not admitted liability, has not been adjudicated a liable party, and the Consent Decree lodged with this court expressly provides that SCA is not to be considered a liable party for any reason.

Another important difference between this case and United Technologies is the fact that the consent decree in United Technologies was signed and entered into prior to the effective date of SARA (which added § 122 to CERCLA). Thus, the plaintiffs in United Technologies did not receive the benefit of § 122 which provides that "the participation by any party in the [settlement] process under this section shall not be considered an admission of liability for any purpose. . . ." 42 U.S.C. § 9622(d)(1)(B). Section 122 also provides that "The President may fashion a consent decree so that the entering of such decree and compliance with such decree or with any determination or agreement made pursuant to this section shall not be considered an admission of liability for any purpose." 42 U.S.C. § 9622(d)(1)(C).

The First Circuit, in deciding United Technologies, had little basis for concluding that the plaintiffs were anything other than liable parties and, by definition, were pursuing a contribution action against the defendants. In sharp contrast, this court is precluded by the language of § 122(d), as well as the language of the Consent Decree, from finding that SCA is a liable party. Moreover, SCA's Consent Decree, at page 41, provides that: "It is understood that the Settling Defendant [SCA] may pursue cost recovery and contribution claims against certain non-parties. . . ." (Emphasis added). Thus, there is absolutely no basis for this court to conclude that SCA's cost recovery claim against the third-party defendants is, in actuality, solely a claim for contribution.

C. TOWN OF MUNSTER, IND. V. SHERWIN-WILLIAMS CO., INC.

The third-party defendants have also taken the position in their Amended Reply Brief that Town of Munster, Ind. v. Sherwin-Williams Co., Inc., 27 F.3d 1268 (7th Cir. 1994), supports their position that SCA is limited to a contribution action.¹⁰ In Sherwin-Williams, the Town of Munster had brought an action against Sherwin-Williams, under § 107 and § 113, seeking cost recovery and/or contribution as a result of the costs it incurred completing EPA-ordered clean-up work. The case was tried to a Magistrate Judge, and after a four-day trial the Magistrate Judge entered judgment for Sherwin-Williams on the ground that the doctrine of laches barred the Town's suit.

The Town appealed, presenting a straight-forward question of law to the Seventh Circuit: "whether CERCLA permits the assertion of the equitable defense of laches to bar recovery in a private party cost recovery or [25 ELR 20408] contribution action. . . ." Id. at 1269. After citing the pertinent section of CERCLA, the Seventh Circuit stated that "[u]nder § 113(f), any party found liable for clean-up costs may seek contribution from other liable or potentially liable parties. . . ." Id. at 1270. The Court then held that "CERCLA does not permit equitable defenses to § 107 liability, although we do conclude that equitable factors may be considered in the allocation of contribution shares." Id. In conclusion, the Seventh Circuit stated that "Munster's cost recovery claim must be reinstated for a determination of liability and, if necessary, apportionment. At the apportionment stage, of course, the court may consider such equitable factors as it deems appropriate." Id. at 1274.

This court fails to see how Sherwin-Williams supports the third-party defendants' arguments. The Town of Munster filed its cause of action against Sherwin-Williams under both § 107 and § 113. There did not appear to be a disputed issue in the case as to whether the Town was a liable party or whether it could properly bring a § 107 action. Rather, the courts were concerned with what defenses the defendant could assert against the § 107 action. It is abundantly clear that if the Seventh Circuit believed the § 107 action was, as the third-party defendants argue, merely a § 113 action in disguise, the Court would not have devoted an entire opinion to analyzing § 107 to determine whether equitable defenses could be properly asserted.

The third-party defendants focus on the fact that the Seventh Circuit discussed apportionment of liability, jumping to the conclusion that the Seventh Circuit was actually considering the Town's § 107 action to be an § 113 action. See Amended Reply Brief at 5. There is simply no basis in the Seventh Circuit's opinion for this conclusion. By bringing claims pursuant to § 107 and § 113, the Town was clearly attempting to establish Sherwin-Williams' liability and then seek contribution. The Seventh Circuit simply stated that equitable defenses could not be raised in the liability phase of the case (§ 107), but could be raised during the damage phase of the case (§ 113). The Seventh Circuit did not explicitly express an opinion on the propriety of the Town of Munster's act of asserting a cost recovery action. This court will not lightly assume that the Seventh Circuit somehow implicitly held that the Town's cost recovery action was actually a contribution action in disguise, especially in light of the fact that the Court expressly ordered that the Town's cost recovery claim was to be reinstated for a determination of liability. Id. (Emphasis added). Rather, if any implication is to be made from the Seventh Circuit's opinion, it is that the Town's § 107 cost recovery action was proper and the Town was not limited to pursuing a § 113 contribution action. Consequently, this court agrees with SCA that Sherwin-Williams supports this court's April Order and does not, in any way, undermine this court's analysis and holding.

Alternative Motion for Certification

In their alternative motion for certification, the third-party defendants argue that the issues decided in this court's April Order, which were revisted in this order, are "controlling questions of law" and that immediate interlocutory appeal of these controlling legal questions will "materially advance the ultimate termination of the litigation."

SCA has strongly opposed the request for certification, arguing that the third-party defendants' delay of nearly four months bars their request. SCA also takes the position that even if the Seventh Circuit were to reverse this court's decision and find that SCA was only entitled to pursue a contribution claim, this reversal would not materially advance the ultimate termination of this litigation as SCA believes it has equitable defenses which toll the statute of limitations.

In response to SCA's arguments, the third-party defendants have stated that the ruling in Akzo, which they obviously were not aware of until a short while after the July 11, 1994 decision was rendered, prompted them to seek certification and that they did not seek certification earlier because they did not have any reason to do so. However, as SCA has pointed out, this argument is substantially undermined by the third-party defendants' statement that "Sherwin-Williams' holding on the relationship between cost recovery and contribution actions directly contradicts this Court's April 19 Order while fully supporting Movant's position." See Amended Reply Brief at 5-6. Sherwin-Williams was decided on June 27, 1994. Thus, if the third-party defendants honestly believed that Sherwin-Williams was in direct conflict with this court's April Order, they should have filed a motion for certification shortly after that decision was rendered.

Additionally, this court is not persuaded by the third-party defendants' bald assertion that a decision by the Seventh Circuit will materially advance the ultimate termination of this litigation (even if SCA is permitted to assert equitable defenses and its third-party complaint is not dismissed) by "simplifying pre-trial procedures". The third-party defendants have not explained how any of this court's pre-trial proceedings will be simplified or to what degree they will be simplified. Considering the vast number of parties in this case, and the fact that costly clean-up operations are continuing to be performed, this court is extremely hesitant to prolong this case so that a time-consuming appeal may be taken. Moreover, the third-party defendants have completely failed to convince this court that there is any indication that the Seventh Circuit would reverse this court's April Order (or this motion to reconsider). Consequently, this court declines the third-party defendants' invitation to certify this case for interlocutory appeal.

Conclusion

For all of the foregoing reasons, the third-party defendants' motion to reconsider is hereby DENIED. Further, the third-party defendants' alternative motion for certification of interlocutory appeal, pursuant to 28 U.S.C. § 1292(b) is also hereby DENIED.

1. This motion was brought on behalf of the Fort Wayne Reduction Site Generator Group whose members include Navistar International Transportation Corp., Dana Corporation, The Uniroyal Goodrich Tire Co., Cooper Tire & Rubber Co., Phelps Dodge Corp., United Technologies (Sheller Globe), General Electric Co., Corning Glass Works, Joslyn Manufacturing Co., Tokheim Corp., Van Wert County Transfer Station, Potlatch Corporation, ITT Corporation, Indiana Michigan Power Co., Hi-Ranger Liquidating, Inc., Utility Equipment Holding Corp., Simon-Telelect, Inc., Harris-Kayot, Inc., Fruehauf Trailer Corp., and B. F. Goodrich Auto Service. Rieke Corporation, Fort Wayne Newspapers, Inc., and Borg-Warner Corp. also joined in the initial motion. Additionally, the following third-party defendants joined the motion on September 8, 1994: Barry Dorman, Barry Pass, Colwell/General, Inc., The Fonda Group, Inc., Leonard Rifkin, Knepper Cartage, Inc., OmniSource Corp., Protective Coatings, Scott Paper Company, and Valspar Corporation.

2. The facts of this case have been fully set forth in this court's order of April 18, 1994, reported at 849 F. Supp. 1264. Consequently, this order will only discuss those facts necessary for an understanding of the present motion.

3. 42 U.S.C. § 9613(g)(3) provides as follows:

No action for contribution for any response costs or damages may be commenced more than 3 years after —

(A) the date of judgment in any action under this chapter for recovery of such costs or damages, or

(B) the date of any administrative order under section 9622(g) of this title (relating to de minimis settlements) or 9622(h) of this title (relating to cost recovery settlements) or entry of a judicially approved settlement with respect to such costs or damages.

4. CERCLA § 113(f)(2) provides that:

A person who has resolved its liability to the United States or a State, in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement. Such settlement does not discharge any of the other potentially liable persons unless its terms so provide, but it reduces the potential liability of the others by the amount of the settlement.

5. The third-party defendants claim that the Seventh Circuit in Town of Munster, Ind. v. Sherwin-Williams, 27 F.3d 1268, 1270-72 (7th Cir. 1994), "clearly stated" that an adjudication of liability was not necessary under CERCLA. See Amended Reply Brief at 8. This statement constitutes a misrepresentation to this court, a matter which this court views very unfavorably. As will be discussed more fully later in this order, the Seventh Circuit in Sherwin-Williams held that equitable defenses may not be raised in a CERCLA § 107 action because § 107(a) imposes liability "notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b)." 42 U.S.C. § 9607(a). Meaning that subsection (b) "establishes the universe of defenses to section 107 liability" with no mention of equitable defenses. 27 F.3d at 1271 (citing General Electric v. Litton Indus. Automation Systems, 920 F.2d 1415, 1418 (8th Cir.1990)). The Court did not state, clearly or otherwise, that no adjudication of liability was necessary under § 107. In fact the Court specifically held that "Munster's cost recovery claim must be reinstated for a determination of liability. . . ." 27 F.3d at 1274 (emphasis added). Thus, although § 107 liability may be strict and the defenses to liability limited, there clearly has to be a determination of liability.

6. The third-party defendants have stated, without citation to authority, that "the mere fact that a party to a Consent Decree has bargained for language to the effect that the decree is not an 'admission' of liability, does not foreclose that party's liability under CERCLA." Reply Brief at 8, n. 4. This statement is illogical (why would a party bargain for language that is meaningless?) and, moreover, it raises interesting questions (which this court will not pursue at this time), such as lack of consideration. Additionally, the third-party defendants should note that CERCLA § 122(d)(1) provides that a party's non-admission of liability in a consent decree may not be used in any way as a finding of liability under any section of CERCLA.

7. Akzo, as well as another case relied upon by the third-party defendants, United Technologies Corp. v. Browning-Ferris Indus., 33 F.3d 96 (1st Cir. 1994), also pointed out the distinction between a cost recovery action and a contribution action. See United Technologies, at 98-99, 100 (quoting Akzo).

8. See 1993 WL 660007, 1993 U.S.Dist. LEXIS 19160 (D.Me. May 27, 1993).

9. See 1993 WL 660007, 1993 U.S.Dist. LEXIS 19162 (D.Me. Aug. 11, 1993).

10. As SCA has noted in its Surreply Brief, the third-party defendants' reliance on Sherwin-Williams has been less than consistent. Previously, in their brief in support of their motion to dismiss, the third-party defendants relied on the district court opinion in Sherwin-Williams. See Brief in Support of Motion to Dismiss at 15-16. This court agrees with SCA that it is difficult to understand how the Seventh Circuit's recent decision in Sherwin-Williams, which vacated and remanded the district court's decision, can also support the third-party defendants' position.