ELR Citation: ELR 21581
No(s). 2:92CV00674(AHN) (D. Conn. May 11, 1994)

The court holds that potentially responsible parties (PRPs) may bring private cost recovery actions under both §§107 and 113 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court first holds that plaintiffs stated a prima facie case under §107 because they have alleged that the contaminated site is a facility within the meaning of §101(9), that a release of hazardous substances has occurred, and that plaintiffs have incurred or will incur response costs consistent with the national contingency plan. The court next holds that plaintiffs' status as PRPs does not preclude them from pursuing a §107 claim, because §107's use of the term "any other person" and its limited defenses to liability imply that Congress intended the liability provision to sweep broadly. Also, while CERCLA is silent as to whether the term "any other person" includes other PRPs, a number of courts have found that allowing PRPs to pursue §107 actions is consistent with the broad scope of liability that Congress intended. Furthermore, in cases such as this one where a settling PRP has sought to recover response costs from nonsettlors, there is no conflict between §107's goal of encouraging settling parties to initiate cleanup operations promptly and voluntarily and §113's goal of protecting settlors from contribution. The court notes that the weight of case authority has rejected application of the doctrine of unclean hands as inconsistent with CERCLA's purpose.

The court next holds that no authority exists for defendants' contention that plaintiffs' §107 claim is subsumed by their §113 claim. Rather, case law indicates that the two actions serve distinct purposes and may be brought as separate claims in a single action. The court rejects defendants' argument that plaintiffs cannot state a §113(f) claim unless they admit liability. Defendants' argument is flawed because it contradicts the plain language of CERCLA, which states that any person may bring an action for contribution. Also, defendants' argument is derived from common-law tort principles, which are not clearly applicable to CERCLA. Finally, the court rejects defendants' argument that plaintiffs' claims must be dismissed because pleading contribution under both §§107 and 113 is unnecessarily confusing. Even if defendants' concern about the procedural awkwardness of this action is merited, such concern is not a basis to dismiss either of plaintiffs' claims.

Counsel for Plaintiffs
Robert G. Dunn
Pepe & Hazard
Goodwin Sq., Hartford CT 06103
(203) 522-5175

Counsel for Defendants
David Platt
Murtha, Cullina, Richter & Pinney
City Place One
185 Asylum St., Hartford CT 06103
(203) 240-6000