ELR Citation: ELR 20119
No(s). 09-1814 (3d Cir. Apr 12, 2010)

The Third Circuit vacated and remanded a lower court decision finding a defendant liable for costs incurred at the Boarhead Farms Superfund site. The plaintiffs filed their cost recovery and contribution action under CERCLA and the Pennsylvania Hazardous Sites Cleanup Act to recover costs that they had paid to EPA pursuant to certain consent decrees or that plaintiffs had provided with respect to the cleanup of millions of gallons of toxic waste at the site. The defendant argued that no common liability existed because when EPA brought suit against plaintiffs to enforce a consent decree that suit (and, therefore, any suit against defendant) was time barred. The court held that because the lower court did not make a factual finding sufficient to determine whether or not EPA’s suit against plaintiffs was timely under the three-year statute of limitations (SOL), the judgment was vacated and remanded to make an unequivocal finding as to the date or time period within which EPA completed its removal action. Likewise, it cannot be determined whether the six-year SOL exception contained in CERCLA §113(g)(2)(B) applies since it is dependent on the time that EPA completed its removal work. The court, however, affirms the lower court in allowing certain plaintiffs to pursue CERCLA §107(a) claims for the amount they paid into group trust accounts for cleanup work pursuant to private settlement agreements with other plaintiffs. In regards to plaintiffs that had entered into consent decrees with EPA, these plaintiffs did not have any §107(a) claims for costs incurred pursuant to consent decrees since these plaintiffs would be shielded from contribution counterclaims under CERCLA §113(f)(2) if permitted to bring a §107(a) claim. Finally, in proceeding under §113(f) in allocating liability among the parties, the lower court may not consider a stipulation as evidence against defendant that did not join in that stipulation. There may, however, be other evidence in the record that the lower court may rely on to perform its equitable allocation.

[A prior decision in this litigation can be found at 38 ELR 20230.]