ELR Citation: ELR 20315
No(s). 92-109-ATH(DF) (M.D. Ga. Jun 18, 1993)

The court holds that a Superfund site owner's claim for contribution against a transporter who spilled trichloroethylene (TCE) at the site is not barred by the contribution protection provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The consent order between the transporter and the state involved state, not federal, law, the site owner did not get notice of the settlement or an opportunity to be heard, and state law does not bar the site owner's claim. The court holds that the absence of contractual language providing contribution protection does not preclude the operation of CERCLA §113(f)(2). The court holds, however, that the consent order, resolves matters of violation of the Georgia Hazardous Waste Management Act and does not preclude the site owner from seeking contribution from the transporter under §113(f)(1), because the order is not a settlement of CERCLA liability. The court finds that Congress did not intend for settlements effected under a state's environmental statute to confer CERCLA contribution protection. Moreover, contribution protection barring the site owner's claim would violate due process, because the site owner had no notice or opportunity to be heard. Further, due process concerns are magnified when a potentially responsible party tries to use an administrative settlement to extinguish another party's contribution rights. Finally, the court notes that the site owner did not have an opportunity under Georgia law to contest the consent order, because the consent order did not aggrieve or adversely affect the site owner.

Counsel for Plaintiff
Kenneth L. Millwood
Nelson, Mullins, Ripley & Scarborough
400 Colony Sq.
1201 Peachtree St., P.O. Box 77707, Atlanta GA 30361
(404) 817-6000

Counsel for Defendants
Stephen E. O'Day, Clark G. Sullivan
Smith, Gambrell & Russell
Promenade II
1230 Peachtree St. NE, Ste. 3100, Atlanta GA 30309
(404) 815-3500