ELR Citation: ELR 21555
No(s). 93-CV-1005-J (D. Wyo. Jun 2, 1994)

The court holds that defendants settling with the U.S. Environmental Protection Agency in a Resource Conservation and Recovery Act (RCRA) §7003 imminent hazards action have a right to contribution against nonsettling defendants under the statute and under federal common law. The court first holds that RCRA does not expressly grant settling defendants a right to contribution. The court holds, however, that based on its power to do justice, which is plainly invoked by §7003, the court affirms settling defendants right to seek contribution in this case. Section 7003 gives broad authority to the courts to grant the full range of equitable remedies and all remedies traditionally provided under the common law of nuisance. Courts have granted restitution in cases brought under §7003, and there is no legitimate reason to grant restitution and not contribution when both remedies are designed to prevent unjust enrichment. Similarly, contribution is part of the common law of nuisance under the Restatement (Second) of Torts §886A, which courts have relied on to impose joint and several liability in §7003 cases. A right to contribution is an integral component of joint and several liability and, thus, must be recognized. Moreover, granting a right to contribution will serve the purposes underlying §7003 by facilitating and encouraging early settlement of RCRA cases and expeditious cleanups of those sites. Furthermore, there is no just cause for penalizing settling defendants for their consent to pay cleanup costs, nor would justice be served by rewarding nonsettling defendants and other parties for refusing to contribute to cleanup costs.

The court holds that a right to contribution in §7003 actions also exists as a matter of federal common law. The court follows cases finding a federal common-law contribution right under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Congress plainly authorized courts to recognize a federal common-law right to contribution in RCRA actions. Moreover, contribution will serve the same unique federal interests under RCRA that are served by a federal common-law right to contribution under CERCLA—encouraging defendants to locate and implead other potentially responsible parties, making early settlements of RCRA suits possible, preserving the public treasury, and producing faster cleanups of those sites.

The court holds that U.S. Supreme Court precedent, established in a case considering whether a right to contribution exists in securities cases, supports the recognition of a right to contribution under §7003. Section 7003 leaves the courts the task of determining which equitable remedies will be available under the statute. Coherence and consistency demand that the court exercise its authority to grant the same equitable remedy in RCRA actions that is available in CERCLA actions. Also, recognizing a right to contribution under RCRA will advance, rather than frustrate, the purposes of the statute.

[A prior decision in this litigation is published at 24 ELR 21553.]

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

Counsel for Defendants
Glenn E. Smith
Glenn E. Smith & Associates
1706 Thomes Ave., Cheyenne WY 82001
(307) 635-4912