ELR Citation: ELR 20337
No(s). 83-2456 (E.D. Pa. Jul 3, 1990)

The court denies defendant's motion to dismiss Pennsylvania's counterclaim for contribution under §113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) because questions remain concerning whether the counterclaim addresses the same issues covered by a settlement between the defendant and the United States. The court first rules that CERCLA §113(f)(2) bars contribution claims against parties that have settled their liability to the United States for matters covered by the settlement. However, the court rules that the immunity from contribution is not available for matters not addressed in the prior settlement, such as subsequent CERCLA or state-law violations. For purposes of CERCLA §113(f)(2), "matters addressed in the settlement" include the particular hazardous substance addressed in the settlement, the location or site, the time frame covered by the settlement, and the cost of cleanup. While there are some similarities between the counterclaim and the settlement, the court is unable to determine on this motion to dismiss whether the counterclaim addresses the same subject matter as the settlement. The court next holds that CERCLA preempts Pennsylvania's state-law counterclaims only to the extent that they address the same subject matter as the settlement. 'The court dismisses any counterclaim for damages under the Clean Streams Law, but allows a counterclaim under the Clean Streams Law to abate a nuisance. The court strikes Pennsylvania's affirmative defense of sovereign immunity, since the Supreme Court has held that states may be held liable for damages under CERCLA. The court strikes as contrary to the Supremacy Clause an affirmative defense that defendant's CERCLA claim is barred by its duty under Pennsylvania law, but allows the alternative affirmative defense that defendant is liable under these statutes. The court also strikes the state's unclean hands affirmative defense, since this defense is not available in CERCLA actions.

[Previous decisions in this litigation are published at 14 ELR 20246, 20491, 16 ELR 20818, 18 ELR 20046, and 19 ELR 20974.]

Counsel for Plaintiff
Michael M. Baylson, U.S. Attorney
James G. Sheehan, Ass't U.S. Attorney
3310 U.S. Courthouse, Independence Mall W.
601 Market St.
Philadelphia PA 19106
(215) 597-1716

Counsel for Defendant
David H. Marion, Robert A. Swift
Kohn, Savett, Klein & Graf
1101 Market St., Ste. 2400
Philadelphia PA 19107
(215) 238-1700

Lawrence A. Demase
Rose, Schmidt, Hasley & DiSalle
900 Oliver Bldg.
Pittsburgh PA 15222-5369
(412) 434-8600