ELR Citation: ELR 21569
No(s). 92-1648-CIV-T-17 (M.D. Fla. Apr 26, 1994)

The court holds that the appropriate allocation method for determining a nonsettling defendant's liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is set forth in the Uniform Comparative Fault Act (UCFA) rather than the Uniform Contribution Among Tortfeasors Act, and that private parties are entitled to recover attorney fees in a CERCLA cost recovery action. Hillsborough Countyand other co-plaintiffs brought a cost recovery action seeking $8.6 million in costs incurred responding to environmental contamination at the Sydney Mine Waste Disposal Site in Hillsborough County, Florida. Applying the UCFA to the settlement agreement between the county and a defendant chemical company, the court first holds that no fairness hearing is required as a condition precedent to the settlement agreement, and therefore orders the chemical company dismissed with prejudice. The court holds that the UCFA's allocation method is consistent with Congress' intent and CERCLA's purposes. The court denies other defendants' motion to dismiss the county's claims for attorney fees, holding that attorney fees are necessary costs and that allowing for their recovery furthers CERCLA's two main purposes—prompt cleanup of hazardous waste sites and imposition of all cleanup costs on responsible parties. The court also holds that the complaint adequately states CERCLA claims and that a heightened pleading standard does not apply to CERCLA litigation. The court next holds that although state contribution claims are only available against parties not liable for contribution under CERCLA, any questions bearing on the application of Florida contribution law are not yet ripe because the defendants may be potentially liable under CERCLA for response costs incurred pursuant to the U.S. Environmental Protection Agency's enforcement order. The court denies a defendant waste services company's motion to dismiss on grounds that the county's action is time barred, and holds that the limitations period does not begin to run at the date of the last action by a defendant, but rather begins to run when all contamination is removed. Finally, the court denies a defendant franchisor's motion for summary judgment, because its franchise agreement with its franchisee gives rise to a genuine issue of material fact concerning the level of control it exercised over its franchisee's waste disposal activities.

Counsel for Plaintiffs
William W. Merrill II
Icard, Merrill, Cullis, Timm, Furen & Ginsburg
2033 Main St., Ste. 600, Sarasota FL 34237
(813) 366-8100

Counsel for Defendants
William C. Ballard
Fisher & Sauls
City Center
100 Second Ave. S., Ste. 701, P.O. Box 387, St. Petersburg FL 33701
(813) 822-2033