ELR Citation: ELR 21465
No(s). CV-F 93-5091 REC/DLB (E.D. Cal. Jul 13, 1995)

The court holds that under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), a city that is an admittedly responsible party is limited to bringing a §113(f) contribution action against another potentially responsible party (PRP) to recover response costs the city incurred cleaning up a municipal solid waste landfill. The court first notes that federal courts are split on whether an action brought by one PRP against another must be characterized as one for contribution under §113 or one for cost recovery under §107. The court finds persuasive cases that rely on the Restatement (Second) of Torts to hold defendants jointly and severally liable in cost recovery actions and to define the scope of liability in contribution actions. Restatement § 886A provides that joint and several liability is not available in actions between joint tortfeasors. The court holds that the facts support a finding that this action is one for contribution, because plaintiff has admitted CERCLA liability, the case is pled as a civil action under §107(a), and defendants argue that plaintiff should contribute to the cleanup operations. Also, the city is seeking reimbursement for any incurred expenses that exceed its own liability and an assurance that it will not be responsible for a disproportionate share of any future costs. The court holds that the city can assert claims against defendants to hold them severally liable for their equitable share, which the court will determine by apportioning liability in an equitable fashion. The court notes that it will consider the initiative taken by the city, which has protected public health and safety by beginning the abatement of releases of hazardous substances from the landfill. Moreover, the city does not automatically bear the full risk of the orphan shares, because the court, in its discretion, will apportion these shares equitably among the parties. The court notes that it need not resolve the possible parameters of an implied §107 contribution action, because the parties specifically dispute the potential liability and the applicable statute of limitations, and these specific issues are the same in any type of contribution action. Regardless of how it is pled, this is an action for contribution and, thus, defendant faces several liability. Similarly, application of the CERCLA §113(g)(3) statute of limitations does not depend on how the contribution action is pled. The court holds that CERCLA's plain meaning indicates that whether the action is time barred depends on whether the city has settled its liability with the government so as to fall within §113(g)(3), an issue that the parties have not addressed.

Counsel for Plaintiff
Mary Peterson
City Attorney's Office
2600 Fresno St., Fresno CA 93721
(209) 498-1326

Counsel for Defendant
Joseph J. Armao
Heller, Ehrman, White & McAuliffe
333 Bush St., San Francisco CA 94104
(415) 772-6000