ELR Citation: ELR 20349
No(s). 90 CV 298 (N.D. Ind. Jun 23, 1993)

The court holds that a paint manufacturer is entitled to raise the equitable defense of laches in a private contribution action brought under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) by a town that owns a landfill containing hazardous waste and that the defense bars the action. Noting that a private party may not assert equitable defenses against the government when it is acting in its sovereign capacity and that two diverging lines of cases exist regarding the use of equitable defenses in CERCLA private recovery actions, the court nevertheless holds that the equitable defense of laches is available against a town in a CERCLA private contribution claim. CERCLA §113 specifically states that federal common law shall govern actions brought under the Act and that a court shall use equitable factors in resolving the issues, and policy considerations against theapplication of equitable defenses are not at issue in a private contribution proceeding, as would be in a case filed by the federal government, because no federal Superfund dollars have been expended to remove the hazardous waste and, therefore, the federal government has no direct interest in the outcome of the lawsuit. Moreover, under CERCLA §101(32), "liable" should be construed as the standard of liability which is obtained under the Federal Water Pollution Control Act §311, which the U.S. Supreme Court has held allows all equitable defenses, and a defendant should be able to assert equitable defenses where the plaintiff in a contribution action seeks equitable relief.

Applying the doctrine of laches, the court holds that the town failed to provide an excuse for the delay in bringing this action when it knew, or should have known, about the landfill and the potentially hazardous waste located there in 1969 when it purchased the land. The drum site was not concealed and would have been visible to a walking inspection of the area. The court next holds that the paint manufacturer established that it suffered prejudice from the delay because various drums and containers in the landfill have deteriorated, making it difficult to identify which drums belonged to the paint manufacturer. Moreover, the drum site contained chemicals not traceable to the paint manufacturer, the town failed to identify which hazardous substances came from the drums identified as belonging to the paint manufacturer, and the passage of time and failure to notify the paint manufacturer before cleanup of the site has decreased its opportunity to formulate a defense.

Counsel for Plaintiff
Stephen P. Kennedy, Eugene M. Feingold
707 Ridge Rd., Ste. 204, Munster IN 46321
(219) 836-8800

Counsel for Defendants
Jane B. Amdahl, Joseph Van Bokkelen
Goodwin, Ball & Van Bokkelen
3737 45th St., Highland IN 46322
(219) 924-9200