ELR Citation: ELR 21506
No(s). 92-30393-RV (N.D. Fla. May 17, 1995)

The court holds that the exclusive remedy for a private potentially responsible party (PRP) seeking contribution from other private PRPs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for cleanup costs incurred at an industrial site in Pensacola, Florida, is a CERCLA §113(f) contribution claim. Congress plainly modified the right of contribution for response costs in CERCLA actions when it adopted §113, and contribution claims are explicitly controlled by the statute. Therefore, plaintiff-PRP's contribution claim for past response costs must be brought under §113. The court holds that plaintiff-PRP's §107 claim for future response costs is also precluded. Next the court holds that plaintiff-PRP's §113(f) contribution claim is not time barred by the §113(g)(3) statute of limitations, because the 1984 consent order between the plaintiff-PRP and the state, which defendant-PRP alleges triggers the statute of limitations, was not judicially approved and, therefore, does not fall within the categories of administrative orders that triggers the limitations period. Addressing plaintiff-PRP's state-law claims, the court holds that all applicable Florida statutes of limitations had expired when the complaint was filed, because the plaintiff-PRP knew of the hazardous substance or pollutant or contaminant concerned more than four years before it filed its complaint. The court denies plaintiff-PRP's motion for summary judgment on the issue of liability on its CERCLA claim, because there is only circumstantial evidence that the defendant-PRP, or its predecessors, directly disposed of hazardous substances during the time they operated at the site. The court notes that the defendant-PRP may be liable for disposal resulting from the passive migration of contaminants from adjacent land, unless it can establish any of the affirmative defenses under §107(b). The court notes that defendant-PRP is not precluded from asserting the §107(b) third-party defense due to its contractual relationship with a company that provided the defendant with raw materials, because there is no evidence that the relationship was connected or related to the flow of stormwater that was responsible for the passive migration of the contamination onto the property.

[A prior decision in this action is published at 25 ELR 20307.]

Counsel for Plaintiff
William A. Ruskin
Schulte, Roth & Zabel
900 Third Ave., New York NY 10022
(212) 758-0404

Counsel for Defendants
Amey C. Winterer
Wilmer, Cutler & Pickering
2445 M St. NW, Washington DC 20037
(202) 663-6000