ELR Citation: ELR 21159
No(s). 96-7443 (3d Cir. May 2, 1997)

The court holds that a landfill operator that is a potentially responsible party (PRP) may not bring a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §107 claim against another PRP that installed monitoring wells at the landfill. The PRPs do not have the option to choose whether to proceed under §107, which has a six-year statute of limitations, or §113, which has a three-year statute of limitations. Allowing a PRP such a choice would render §113 a nullity. The court then holds that the discovery rule does not render the landfill operator's §113 claim timely. Under the discovery rule, a claim accrues on awareness of actual injury, not on awareness that the injury constitutes a legal wrong. The landfill operator was aware of its injury in 1989 when it agreed to undertake remedial action. That it did not know in 1989 that it was agreeing to incur the well installer's share of cleanup costs is not relevant under the discovery rule. The court also holds that the doctrine of equitable tolling is not appropriate in this case, because the landfill operator did not exercise reasonable diligence in investigating and bringing its CERCLA claims. The landfill operator also was not prevented by extraordinary circumstances from filing the suit.

[A prior decision in this litigation is published at 26 ELR 20628.]

Counsel for Appellants
George J. Weiner
McCutchen, Doyle, Brown & Enersen
The Evening Star Bldg.
1101 Pennsylvania Ave. NW, Ste. 800, Washington DC 20004
(202) 628-4900

Counsel for Appellee
Kenneth J. Warren
Manko, Gold & Katcher
401 City Ave., Bala Cynwyd PA 19004
(610) 660-5700

Before: MANSMANN and LEWIS, Circuit Judges, and DUPLANTIER, District Judge.^*