ELR Citation: ELR 20352
No(s). 92-CV-7458 (E.D. Pa. Sep 1, 1993)

The court denies a defendant manufacturer's motions for summary judgment on contribution claims for response costs incurred by the plaintiff under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the New Jersey Spill Compensation and Control Act (Spill Act), and grants defendant summary judgment under the New Jersey Joint Tortfeasor's Contribution Act (Contribution Act) on plaintiff's state-law contribution claims. Pursuant to a consent decree with the U.S. Environmental Protection Agency (EPA) that did not discharge the liability of other potentially responsible parties, plaintiff spent $2,700,000 responding to pesticide contamination at its facility. The plaintiff then sought contribution for past and future response costs from the defendant company, which had engaged in manufacturing on the site.

The court first denies the defendant summary judgment on the plaintiff's CERCLA contribution claim, because there is a genuine issue as to whether hazardous substances were disposed of at the site during the defendant's tenure. The defendant crushed large blocks of aluminum chloride and vented aluminum chloride dust, which oxidizes rapidly into a type of hazardous chemical found on the site, into the environment through an exhaust fan. Although any hazardous chemicals defendant released did not cause EPA to undertake the response action, the causation element of CERCLA requires only that defendant cause a release of a hazardous substance, not the incurrance of response costs. The court next denies the defendant summary judgment on the plaintiff's Spill Act claim because a question remains as to whether the defendant is responsible for contamination at the site.

Finally, the court holds that the plaintiff does not have a contribution claim for costs it incurred under its settlement with EPA under the state-law tort theories of nuisance, strict liability, or negligence. The Contribution Act does not provide a right to contribution for money paid under a consent decree where, as here, the decree does not extinguish the injured party's claims against the nonsettling joint tortfeasor.

Counsel for Plaintiff
Michael A. Bogdonoff, William J. Kennedy
Dechert, Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch St., Philadelphia PA 19103
(215) 994-4000

Counsel for Defendants
Brud Rossman
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000