ELR Citation: ELR 21454
No(s). 91-2382-GTV (D. Kan. Sep 14, 1993)

The court holds that a private potentially responsible party (PRP) seeking to recover costs it has incurred and will incur in cleaning up a site it owns in Valley Center, Kansas, may bring a cost recovery action against other private PRPs under §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and is not limited to bringing a CERCLA §113 contribution action. The plaintiff-PRP stated two distinct claims for cost recovery and contribution, and there is no basis to rule that an action for contribution is the only type of recovery available to PRPs under CERCLA. To hold otherwise would defeat CERCLA's goal of encouraging settlements with the government. The court also holds that joint and several liability applies in actions for cost recovery brought by private parties under §107, even actions by private parties who are PRPs, unless the defendant-PRP can establish that the harm is divisible. Next the court holds that CERCLA cases do not require a level of pleading beyond that of notice pleading, and that defendant's cross-claims comport with Fed. R. Civ. P. 8(a)(2)'s liberal notice pleading requirements. The third-party complaint sets out sufficient facts to comport with Rule 8(a)(2)'s requirements by setting out the location and street address of the site at issue, identifying the parties and their domiciles, and indicating that plaintiff had entered into a consent order with the state with regard to the site at issue. Also, the complaint alleges that the third-party defendant contracted or arranged with a transporter to deliver or sent drums containing hazardous substances to the site for the treatment and disposal. The allegation concerning the method of contamination gives sufficient notice to the third-party defendant to enable it to formulate a response to the complaint. The court notes that detailed factual information may be uncovered during the discovery process.

[A subsequent decision in this action is published at 24 ELR 20659.]

Counsel for Plaintiff
Richard L. Green
Stinson, Mag & Fizzell
1201 Walnut St., Ste. 2800, Kansas City MO 64106
(816) 842-8600

Counsel for Defendant
David C. Linder
Zelle & Larson
City Center
33 S. 6th St., Ste. 4400, Minneapolis, MN 55402
(612) 339-2020