ELR Citation: ELR 21437
No(s). 1:89cv29 (N.D. Ind. Apr 18, 1994)

The court holds that a company that incurred response costs at the Fort Wayne Reduction site in Allen County, Indiana, pursuant to a U.S. Environmental Protection Agency (EPA) consent decree, may bring an independent Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §107 cost recovery action against nonsettling, third-party defendants. The company is not limited to a CERCLA §113 contribution claim. The court first notes that most cases in which §107 claims were held barred as claims for contribution involved situations where a nonsettlor was attempting to recover costs from settling defendants, to whom contribution protection should be afforded. The court then analyzes case law involving the reverse situation of settling parties seeking to recover response costs from nonsettlors and finds that with one exception, the settlor was permitted to bring a §107 action. The court refuses to follow the exception. It is unclear that Congress intended setting defendants to be limited to §113 actions and the Act does not support that case's distinction between parties who incur costs on their own initiative (thus retaining the right to pursue a §107 action) and those who are subject to suit by the government (thus forfeiting the right to a §107 claim). The court finds it difficult to characterize the company's §107 claims as §113 contribution claims when the company's liability has never been established or admitted. The court holds that §113's three-year statute of limitations does, however, bar the company's actual §113 claims.

[Related decisions in this litigation are published at 24 ELR 20086 and 24 ELR 20649.]

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

Counsel for Defendant
Percy L. Angelo, Patricia F. Sharkey
Mayer, Brown & Platt
190 S. La Salle St., Chicago IL 60603
(312) 782-0600