ELR Citation: ELR 21354
No(s). 90-7468 (E.D. Pa. Apr 24, 1992)

The court holds that the Resource Conservation and Recovery Act (RCRA) does not bar a government action under §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to recover U.S. oversight costs and interest incurred at a contaminated industrial landfill managed under RCRA. The site was listed in the U.S. Environmental Protection Agency's (EPA's) "potential hazardous waste site log" and proposed CERCLA national priorities list (NPL). Pursuant to EPA's policy on facilities subject to both CERCLA and RCRA, the Agency decided to manage the site under RCRA and removed the site from the proposed NPL. EPA later entered into a RCRA §3008 administrative consent order with the original site owners that required them to perform facility investigation, evaluation, and corrective measure studies. The court holds that the government's cost recovery is not barred by RCRA, because Congress intended CERCLA to be cumulative, not merely an alternative to RCRA, and not limited in its application to formally designated Superfund sites. The court holds that the government's claim is not precluded by the consent order, because the order is a product of negotiation, not fact finding, and EPA was acting in its enforcement capacity, not as a judicial agency, when it issued the order. Further, the order expressly provides that it is not a waiver or release of any rights that EPA may have under CERCLA. The court also holds that the government's direct and indirect costs are consistent with the national contingency plan, and therefore recoverable under CERCLA. The court holds that the purchaser of a portion of the contaminated site is liable under CERCLA and cannot claim CERCLA §107(b)(3)'s third-party defense, because a relevant contractual relationship exists and it is doubtful whether the contamination was caused solely by the previous site owner. The court also holds that the purchaser did not show due inquiry into previous uses of the property when it acquired its portion of the site. Finally, the court holds that the government's claim is not barred by CERCLA §113(g)(2)'s three-year statute of limitations, because the government's complaint was filed on November 25, 1990. EPA did not propose to eliminate the site from the proposed NPL until June 24, 1988.

Counsel for Plaintiff
James Sheehan
U.S. Attorney's Office
615 Chestnut St., Ste. 1250, Philadelphia PA 19106
(215) 597-2556

Counsel for Respondents
James P. Kimmel, Phillip Hinerman
Pepper, Hamilton & Scheetz
3000 Two Logan Sq., 18th and Arch Sts., Philadelphia PA 19103
(215) 981-4000