ELR Citation: ELR 21254
No(s). 92-3820 (7th Cir. Jul 11, 1994)

The court holds that two nonsettling parties' completed, government-ordered emergency cleanup at a hazardous waste site was not a "matter addressed in the settlement" involving the U.S. Environmental Protection Agency (EPA) and settling parties, and, therefore, that §113(f)(2) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not bar the nonsettling parties from seeking contribution from the settling parties under §113. The court first holds that appellants' claim is a §113(f) suit for contribution and not a direct cost recovery action brought under CERCLA §107(a). Appellants' claim is one by and between jointly and severally liable parties for an appropriate division of the payment some of them have been compelled to make. The court next holds that the work appellants completed in response to EPA's emergency order is not a matter addressed by the decree between EPA and the settling parties. Viewing the decree as a whole, the court finds that appellants' work stands apart in kind, context, and time from the work envisioned in the consent decree. Appellants were required to engage in preliminary cleanup work, removal work, which is clearly distinct from the long-range remedial matters addressed by the decree. The court holds, therefore, that appellants may seek contribution from the settling parties under §113(f). The court also holds, however, that appellants may not seek contribution for the voluntary costs they incurred in attempting to anticipate the claims that EPA might assert against them. The focus of these efforts was on the long-term remedial action necessary to effect a permanent cleanup of the site, and, hence, were matters addressed by the decree. As such, they are barred by §113(f)(2).

Counsel for Plaintiffs
Timothy W. Woods
Jones, Obenchain, Ford, Pankow & Lewis
1800 Valley American Bank Bldg.
P.O. Box 4577, South Bend IN 46634
(219) 233-1194

Counsel for Defendants
Pierre C. Talbert Jr.
Foley & Lardner
One IBM Plaza
330 N. Wabash Ave., Ste. 3300, Chicago IL 60611
(312) 444-9500

Before EASTERBROOK and ROVNER, Circuit Judges, and WILLIAMS, District Judge.^*