ELR Citation: ELR 21011
No(s). 80-489 LO (D. Del. Jul 17, 1986)

The court rules that third-party complaints for contribution under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) must allege that the third-party defendant disposed of waste at the site, that the waste contains hazardous substances within the meaning of CERCLA §101(14), and that the hazardous substances contained in the waste were located at the site. The court first holds that the third-party complaints in this case sufficiently alleged that a third-party defendant disposed of CERCLA hazardous substances. Although the chemical substances named in the complaints, iron chloride and chromium, are not specifically listed in CERCLA §101(14), they fall within the reach of §101(14)'s provisions referencing substances listed under other environmental statutes. The court next holds that the third-party complaints should not be dismissed because they fail to allege that the third-party defendant disposed of hazardous substances in amounts exceeding the regulatory threshold quantities. The allegation in the complaints that "substantial quantities" of iron chloride and chromium were disposed of is sufficient to defeat a motion to dismiss. Further, a requirement that third-party complaints allege a threshold amount would conflict with a CERCLA defendant's right to implead third-parties for contribution, since information on the amounts and types of hazardous substances disposed of by third-party defendants may not be available prior to discovery.

The court holds that the third-party complaints are ripe for review although the third-party plaintiffs have not incurred response costs at the site. Defendants in an existing CERCLA action may, pursuant to Federal Rule of Civil Procedure 14(a), implead a third party that is or may be liable to them for response costs. Finally, the court rejects the third-party defendant's argument that it cannot be liable to the third-party plaintiffs for contribution since they are not being sued by the government for the release of these substances. The court rules that the liability of third-party plaintiffs in not limited to the cleanup of the substances described in the government's complaint. Even if their liability is so limited, third-party plaintiffs may proceed with their contribution actions because the government's complaint sufficiently put them on notice of their potential liability caused by the release of hazardous substances identified after the complaint was filed.

Counsel are listed at 16 ELR 21007.