ELR Citation: ELR 21326
No(s). 92-CV-74105-DT (E.D. Mich. Sep 20, 1993)

The court holds that a settlement agreement between the U.S. government and a group of potentially responsible parties (PRPs) does not bar a contribution action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to recover private-party costs incurred in funding a remedial action plan. The first agreement referred only to government costs. The court first holds that although the contribution protection provisions of CERCLA serve to encourage early settlement with the government by protecting PRPs from multiple liability, the protection only extends to matters addressed in the settlement. Both defendants' settlement agreement and plaintiffs' separate settlement agreement with the government address the government's remedial investigation/feasibility study (RI/FS). Plaintiffs' settlement, however, also addresses the final remedial action plan that plaintiffs submitted; defendants' settlement does not. It is evident that the reference to government response costs in the defendants' settlement agreement does not encompass all cleanup costs related to the site, because plaintiffs settled with the government for over $10 million, while defendants settled $1.7 million in response costs for $275,000. The portions of its cleanup costs that the government sought from the two groups of PRPs overlap somewhat, as they both appear to cover the government's cost of conducting the RI/FS. Defendants are protected from an action for contribution for these overlapping expenses. However, they are not immune from plaintiff's contribution suit for plaintiffs' cost of implementing the remedial action plan. The mere fact that defendants' settlement agreement mentioned plaintiffs' consent decree does not change this result. CERCLA distinguishes between private and governmental response costs.

The court next holds that CERCLA §113(f)(2) does not bar plaintiffs' claim for recovery of private costs based on public nuisance, because private costs were not covered by defendants' consent decree. To the extent plaintiffs seek to recover government response costs under a nuisance theory, they will be barred by §113(f)(2). Finally, the court holds that plaintiffs have stated a cause of action for public nuisance. They allege a statutory violation by defendants, specifically that defendants arranged for the disposal or treatment of hazardous wastes at the site. Also, plaintiffs suffered pecuniary damages not faced by the public generally in that they continue to pay one defendant's alleged share of response costs to remediate the site.

Counsel for Plaintiffs
Keith J. Lerminiaux, Timothy H. Howlett
Dickinson, Wright, Moon, Van Dusen & Freeman
500 Woodward Ave., Ste. 4000, Detroit MI 48226
(313) 223-3500

Counsel for Defendants
Daniel J. McCarthy
Mellon, McCarthy & Van Dusen
2301 W. Big Beaver Rd., Ste. 500, Troy MI 48084
(810) 649-1330