ELR Citation: ELR 21441
No(s). CV-F-93-5404 OWW DLB (E.D. Cal. Mar 12, 1995)

The court holds that a chemical processing plant owner that admitted liability for site cleanup costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) may not maintain a CERCLA §107 cost recovery action against its customers and past site owners. The court first rejects the plant owner's argument that the court should wait until development of a factual record to decide whether the owner can maintain a §107 cost recovery action against defendants and whether defendants are jointly and severally liable under §113(f)(1). These are questions of law and are appropriately resolved in defendants' motion for partial summary judgment. In addition, determining that the plant owner can only maintain a contribution action will streamline the litigation by eliminating the owner's joint and several liability claims. The court next holds that the weight of authority supports defendants' argument that a liable party's action against other potentially responsible parties (PRPs) is an action for contribution. An approach that would allow a PRP to collect response costs that the PRP may be required to pay back in a §113 proceeding would guarantee inefficiency, potential duplication, and prolongation of the litigation process. The court rejects the plant owner's argument that because no court has adjudged it liable and it has never settled its liability with the government, its claims are direct rather than in contribution. The plant owner has already stipulated to its CERCLA liability. The court further holds that a company that sent chemicals to the plant owner for formulation is not liable as an arranger under CERCLA §107(a)(3), because no evidence of those chemicals has been discovered at the site. The court also holds that the company is not liable under the California Hazardous Substance Account Act, because liability under that Act requires a finding of liability under CERCLA.

Counsel for Plaintiff
Richard W. Raushenbush
Latham & Watkins
701 B St., Ste. 2100, San Diego CA 92101
(619) 236-1234

Counsel for Defendants
John T. Ronan III
Sedgwick, Detert, Moran & Arnold
One Embarcadero Ctr., 16th Fl., San Francisco CA 94111
(415) 781-7900