ELR Citation: ELR 21602
No(s). 91-0383B (D.R.I. Oct 30, 1992)

The court holds that primary potentially responsible parties (PRPs) are barred from seeking contribution for response costs incurred under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) at a landfill site in Rhode Island, from de minimis PRPs who entered into a settlement agreement with the U.S. Environmental Protection Agency (EPA) that expressly provided for protection from contribution claims. The court first holds that the primary PRPs' suit, ostensibly a claim for response costs under CERCLA §107, is actually a claim for contribution for recovery of response costs under both CERCLA §§107 and 113(f)(1). The court finds no basis to distinguish between causes of action under §§107 and 113(f)(1), because Congress added §113(f) to CERCLA in 1986 to clarify and confirm liable parties' rights to use §107 to seek contribution from each other, but did not indicate an intent for §113(f) to be an independent, alternative cause of action. The court next holds that the contribution claim by nonsettling PRPs against the de minimis settling parties is prohibited by the plain language of the contribution protection afforded by CERCLA §113(f)(2), which covers settling parties in general, and §112(g)(5), which specifically addresses de minimis settlements. The court holds that even under the restrictive definition of contribution in United States v. Hardage, 21 ELR 20721, the primary PRPs' suit to obtain reimbursement for a portion of their response costs is a suit to obtain contribution from other PRPs, because the primary PRPs' response costs are not "independent." The costs have been incurred not on the PRPs' own initiative, but in compliance with an order by EPA. Also, the PRPs' suit to recover a portion of these response costs is derivative of their liability under CERCLA at the site and is therefore a claim for contribution. The court further holds that Congress intended to provide the same protection from contribution for both federal agencies and nongovernmental entities involved in de minimis settlements. Finally, the court holdsthat Federal Rules of Civil Procedure 11 sanctions against the plaintiffs are not warranted.

Counsel for Plaintiffs
William F. McMahon, William S. Eggeling
McMahon & McMahon
The Packett Bldg.
155 S. Main St., Providence RI 02903
(401) 751-1515

Counsel for Defendants
Leo J. Dailey
Nolan & Dailey
1070 Main St., P.O. Box 1470, Coventry RI 02816
(401) 828-5800