ELR Citation: 44 ELR 20034
No(s). 5:12-cv-00127 (W.D. Ky. Feb 7, 2014) (McKinley Jr.)

A district court held that a group of PRPs in connection with a former hazardous waste incinerator in Kentucky may go forward with their CERCLA cost recovery and contribution claims against a group of companies that allegedly generated and/or transported hazardous waste to the site. The companies argued that the PRPs' §107(a) cost recovery claim should be dismissed because the PRPs' exclusive remedy is contribution under §113(f). But the PRPs can maintain a cost recovery action under §107(a) for any costs that it voluntarily incurred during its negotiations with the state's environmental agency. Although the complaint does not clearly indicate that some of the allegedly incurred $9.5 million in response costs were incurred in connection with those negotiations, dismissing the cost recovery claims at this state of litigation would be premature. Rather, the court ruled that the PRPs may amend the complaint to allege the nature of the response costs. The companies also argued that the PRPs' contribution claims are time barred under §113(g)(3) with respect to costs incurred under a removal action administrative order on consent (AOC) with EPA. But none of the §113(g)(3) triggering events have occurred. Without a §122(g) de minimis settlement, a §122(h) cost recovery settlement with EPA or a state, or a judicially approved settlement, a district court must borrow from one of the triggering events in §113(g)(2). Here, the AOC is not properly classified as a §122(h) cost recovery settlement with EPA even though it contains a cost-reimbursement component. Accordingly, §113(g)(2) applies and the applicable statute of limitations began running the date the removal action was completed—not the effective date of the removal action AOC.