The opinion of the court was delivered by: J. CURTIS JOYNER
Third Party Plaintiff Elf Atochem North America has moved this Court to dismiss Defendant/Third Party Plaintiff Witco Corporation's Third Party Complaint against it for failure to state a claim upon which relief may be granted.
The United States sued Elf under CERCLA in 1991. The next year, the two parties entered into a Consent Decree whereby Elf agreed to undertake certain remediations and pay certain of the United States' response costs. In exchange, the United States dismissed its complaint against Elf.
In this action, the United States has sued Witco for all unreimbursed response costs incurred by it for response actions related to the Site, and for a declaratory judgment that Witco is liable for all response costs not otherwise provided for pursuant to the Consent Decree that may be incurred by the United States. In response, Witco has filed a third party complaint against Elf seeking contribution for any costs for which Witco is held liable to the United States. It is this last piece of litigation that is addressed in this Memorandum.
The law is clear that in considering a motion to dismiss for failure to state a claim upon which relief may be granted, the courts must primarily consider the allegations contained in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be taken into account. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990). In ruling upon such a motion, the Court must accept as true all of the allegations in the pleadings and must give the plaintiff the benefit of every favorable inference that can be drawn from those allegations. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). A complaint is properly dismissed only if it appears certain that the plaintiff cannot prove any set of facts in support of its claim which would entitle it to relief. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).
In response to widespread concern over the improper disposal of hazardous wastes, Congress enacted CERCLA in 1980 and the Superfund Amendments and Reauthorization Act (SARA) in 1986 to facilitate the prompt clean-up of hazardous waste sites. In re Bell Petroleum Servs., Inc., 3 F.3d 889, 894 (5th Cir. 1993); United States v. Alcan Aluminum Corp., 964 F.2d 252, 257-58 (3d Cir. 1992). CERCLA's primary purpose is remedial: to clean up hazardous waste sites. Polcha v. AT&T Nassau Metals Corp., 837 F. Supp. 94, 96 (M.D. Pa. 1993). Because it is a remedial statute, CERCLA must be construed liberally to effectuate its two primary goals: (1) enabling the EPA to respond efficiently and promptly to toxic spills, and (2) holding parties responsible for releases liable for the costs of the cleanup. In that way, Congress envisioned the EPA's costs would be recouped, the Superfund preserved, and the taxpayers not required to shoulder the financial burden of nationwide cleanup. B.F. Goodrich Co. v. Murtha, 958 F.2d 1192 (2d Cir. 1992) (citing United States v. Aceto Agric. Chems. Corp., 872 F.2d 1373, 1377 (8th Cir. 1989)); City of New York v. Exxon Corp., 744 F. Supp. 474, 485 (S.D.N.Y. 1990).
As a means of encouraging settlements with the government, SARA provides that a "person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement." 42 U.S.C.A. § 9613(f)(2). The purpose behind this section is to "promote timely, voluntary settlements with the EPA and the states, and effectuate cleanup of hazardous wastes." Akzo Coatings, Inc. v. Aigner Corp., 803 F. Supp. 1380, 1383 (N.D. Ind. 1992). Accordingly, the section "insulates a potentially liable party who has settled a CERCLA action with the United States from liability to a potentially responsible party who has not settled" so the settling party need not pay twice. Id. Many courts have held that this section acts as a stick to non-settling parties and as a carrot to induce settlement. Id. ; United States v. Pretty Prods. Inc., 780 F. Supp. 1488, 1494 (S.D. Ohio 1991); United States v. Union Gas Co., 743 F. Supp. 1144, 1152 (E.D. Pa. 1990).
The theory behind Elf's Motion to Dismiss is that as a party that settled its claims with the EPA, it is immune from this suit for contribution under § 113(f)(2). Elf asserts that it is entitled to § 113's protection by virtue of being a Settling Defendant, but also under the terms of the Consent Decree itself. The Consent Decree reads: "the Parties hereto agree that the Settling Defendant is entitled, as of the effective date of this Consent Decree, to such protection from contribution actions or claims as is provided by CERCLA Section 113(f)(2), 42 U.S.C. § 9613(f)(2)." Consent Decree § XII, P B.
Many courts have already faced the issue raised by Elf. The analysis adopted by federal courts is to consider whether the subject matter of the settlement and the contribution action are the same. This is done by comparing the particular hazardous substances at issue, the time frames covered, and the costs of cleanup. Union Gas Co., 743 F. Supp. at 1153-54 (blanket immunity from contribution "would create a situation where persons settling with the United States who are later responsible for an unrelated act of improper disposal of hazardous waste would find themselves immune from liability under CERCLA or state laws - a result clearly not envisioned by CERCLA"). If the subject matters are the same, the contribution action is properly dismissed.
In Akzo, for example, the Court held that where the settlement did not identify particular hazardous substances, both the consent decree and the action encompassed all hazardous substances found at the facility, and therefore covered the same subject matter. 803 F. Supp. at 1384. Likewise, where the complaint and the consent decree alleged release of hazardous substances between 1972 ...