ELR Citation: ELR 20725
No(s). C-2-91-74 (S.D. Ohio Dec 13, 1991)

The court holds that contribution claims under state and federal law by a nonsettling potentially responsible party (PRP) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against a city that entered into a settlement with the United States are barred by CERCLA §113(f)(2). The United States entered into a consent decree resolving its CERCLA claims against eight of nine identified PRPs for cleanup costs at a municipal landfill. The lone nonsettling PRP filed a third-party complaint alleging that the city's inadequate operation of the landfill renders it liable for contribution under CERCLA and state law. The court holds that the explicit language of CERCLA §113(f)(2) requires dismissal of the third-party complaint. The court holds that the nonsettling PRP's state law indemnity claim is also barred by §113(f)(2) because the indemnity claim is merely a disguised claim for contribution. The court holds that the nonsettling PRP's other equitable claims, including quasi-contract, quantum meruit, restitution, and unjust enrichment, are barred by §113(f)(2) because these claims are similar in substance to contribution claims. Although CERCLA contains provisions preserving additional liability under state law, these general provisions do not override the specific provision in §113(f) granting contribution immunity to settling parties. The court holds that CERCLA §113(f)(2) bars the nonsettling PRP's claim that the city breached its express or implied contract to properly dispose of the nonsettling PRP's waste.

The court next turns to the United States' motion to strike the nonsettling PRP's affirmative defenses to the United States' CERCLA cost recovery action. The court strikes the following affirmative defenses: failure to satisfy the conditions precedent for commencinga CERCLA action; lack of causation; causation due to an act or omission of a third party; challenges to the United States' response costs on grounds other than inconsistency with the national contingency plan (NCP); the equitable defenses of estoppel and waiver; failure to join necessary parties; selective prosecution; failure of the United States to properly mitigate response costs; the equitable defenses of exercise of due care, reasonableness, good faith, and compliance with applicable law; inconsistency with relief sought in the litigation that resulted in the consent decree with the eight PRPs; duty to negotiate in good faith; defendants' liability is limited to the nonsettling PRP's fair share of responsibility; and defendants' liability is limited to the lesser of unrecovered response costs or defendants' respective share of responsibility on a comparative fault basis. The court declines to strike the following affirmative defenses: causation due to act of God; the United States' response costs are inconsistent with the NCP; the United States' actions are inconsistent with Environmental Protection Agency (EPA) policies and regulations and these policies and guidelines are unconstitutional as applied to this case; and the United States' recovery should be reduced by the amount of recovery in the consent decree. The court next addresses the United States' motion to recovery in the cosent court next addresses the United States' motion to strike the affirmative defenses to the United States' claim for civil penalties and injunctive relief against two defendants for failure to supply requested information under CERCLA §104. The court strikes the following affirmative defenses: EPA is estopped because of its own inequitable conduct, to the extent it applies to the claim for injunctive relief; the United States has breached its duty of good faith and fair dealing, to the extent it applies to the claim for injunctive relief; and EPA is not entitled to the damages, response costs, or other relief requested in the complaint. The court declines to strike the following affirmative defenses: EPA's information requests are vague, overbroad, and outside its statutory authority; EPA is estopped because of its own inequitable conduct, to the extent it applies to the claim for civil penalties; the United States breached its duty of good faith and fair dealing, to the extent it applies to the claim for civil penalties; defendants' failure to comply with EPA's information requests is not unreasonable under the circumstances, to the extent it applies to the claim for civil penalties; defendants' liability for civil penalties is tolled by virtue of their reasonable good-faith objections to EPA's information requests and their reasonable belief that EPA agreed to accept as complete the information they provided; and the parent corporation defendant is not liable for the CERCLA liability of its subsidiary.

Finally, the court holds that the defendants are liable for failing to fully and timely respond to EPA's information requests under CERCLA §104(e). CERCLA §104(e) authorizes EPA to request information from a parent corporation concerning its relationship to, and ability to pay for, the CERCLA liability of a subsidiary. This information relates to "the ability of a person to pay for or perform a cleanup" and is thus authorized by CERCLA §104(e)(2).

Counsel for Plaintiff
Leonard M. Gelman
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
David J. Young, C. Craig Woods
Squire, Sanders & Dempsey
41 S. High St., Huntington Cir., Columbus OH 43215
(614) 365-2700

Keith A. Savidge, Patrick J. McIntyre
Seeley, Savidge & Aussem
1940 E. 6th St., 800 Baker Bldg., Cleveland OH 44114
(216) 566-8200