ELR Citation: ELR 20676
No(s). C-92-20677 RPA (N.D. Cal. Nov 30, 1994)

The court holds that a potentially responsible party that currently owns a contaminated site and is seeking to recover cleanup costs from the alleged transporter and the alleged originator of hazardous waste on the site may not bring a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §107 cost recovery action, but rather is limited to bringing a CERCLA §113 contribution action, unless the owner can establish its innocence under CERCLA. The court first notes that CERCLA liability is joint and several for cost recovery actions, but merely several for contribution actions. Next, following the First Circuit's decision in United Technologies Corp. v. Browning-Ferris Industries, Inc., 24 ELR 21356 (1994), the court holds that any and all responsible parties, even those who have expended response costs voluntarily, are limited to bringing §113 contribution actions in order to recover response costs they have incurred. CERCLA limits a vast majority of private parties that seek to recover response costs to suing for §113 contribution because the Act imposes liability on virtually every private party who would have a reason to recoup cleanup costs, even if the parties expended response costs voluntarily. Therefore, the court holds that the owner is relegated to bringing a contribution action unless it can establish its innocence under §107(b).

[A prior decision in this action is published at 23 ELR 21366.]

Counsel for Plaintiff
J. Martin Robertson
Gray, Carey, Ware & Freidenrich
400 Hamilton Ave., Palo Alto CA 94301
(415) 328-6561

Counsel for Defendants
Martin Kresse
McKenna & Cuneo
Steuart St. Tower, 27th Fl., San Francisco CA 94105
(415) 267-4000