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GOULD INC. v. A&M BATTERY & TIRE SERV.

September 14, 1995

GOULD INC., Plaintiff
v.
A&M BATTERY AND TIRE SERVICE, et al., Defendants



The opinion of the court was delivered by: CONABOY

 Presently before the Court is a Motion for Partial Summary Judgment filed on behalf of two of the defense groups in the above-captioned action. The motioning defense groups are the Marjol Site PRP Group and the Rosenn Jenkins Joint Defense Group. *fn1" In its motion, the moving defense groups ask this Court to disallow Plaintiff Gould from bringing a cost recovery action under § 107 of the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9607 (hereinafter "§ 107"). The moving Defendants contend that, as a matter of law under the facts set forth in Gould's own Amended Complaint, Gould's only action is one for contribution under 42 U.S.C. § 9613 (hereinafter "§ 113").

 Plaintiff Gould, by way of its Third Amended Complaint, has brought an action against the Defendants under both Section 107 and Section 113 of CERCLA. Under its § 107 count, Gould asserts that liability should be joint and several against all of the various Defendants. Moving Defendants aver that Gould's only action is limited to a § 113 contribution action and therefore pursuant to § 113's provisions, liability among the Defendants will be several, not joint and several. Furthermore, Defendants contend that if the various Defendants can only be severally liable, then the so called "orphan share" *fn2" must be borne by Plaintiff Gould.

 Finally, Defendants state that if this action is styled as a § 113 contribution action Plaintiff Gould's claim for past cost is time barred by the three-year statute of limitations under 42 U.S.C. § 9613(g) (3) (hereinafter § 113(g)(3)).

 As noted above, Plaintiff Gould has asserted a cause of action under both Section 107 and Section 113 of CERCLA. The statute of limitations for a § 107 cost recovery action is contained in § 113(g)(2) of CERCLA (42 U.S.C. § 9613(g)(2)), while the statute of limitations for a § 113 contribution action is found in § 113(g)(3) of CERCLA (42 U.S.C. § 9613(g)(3)).

 For the reasons which follow, this Court holds that Plaintiff Gould's action is in the nature of a § 113 contribution action. As such, Defendants can only be severally liable for their proportionate share of the harm caused at the Marjol site. Furthermore, since liability under a § 113 contribution action is several, Defendants are not responsible to Gould for the "orphan shares". The Court takes notice of Gould's argument that it would be inequitable to hold Gould solely accountable for the "orphan shares". However, this argument is misplaced based in part on Gould's own waste-in-list. This list clearly shows how much each Defendant contributed to the harm and the resultant liability accorded to each Defendant. Since liability under a section 113 contribution action is several, Defendants are only liable for their share of the harm caused. The waste-in-list provides an accurate method for this Court to determine each Defendant's share of responsibility. Contrary to Gould's argument, it would be inequitable for us to hold Defendants liable for any harm related to the "orphan shares" when this harm was clearly caused by entities other than Defendants.

 Finally, we agree with the Defendants that § 113(g)(3) is the applicable statute of limitations governing a contribution action. However, Defendants argument that Gould is time barred is incorrect. As will be discussed, § 113(g)(3) requires one of four triggering events to occur in order to start the running of the three-year limitation period. Gould's consent order with the Environmental Protection Agency (EPA) is in no way equivalent to one of the four triggering events of § 113(g)(3) and therefore, Gould's action is not time barred.

 STATEMENT OF FACTS

 In December 1991, Plaintiff Gould initiated this action by filing a complaint against various Defendants seeking recovery pursuant to the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601, et seq., for costs incurred and to be incurred to cleanup contamination at the "Marjol Site" located in the Borough of Throop, Lackawanna County, Pennsylvania.

 Marjol Battery & Equipment Company operated a battery-breaking operation in Throop, Pennsylvania from 1963 until May 1980 when Gould acquired the stock of the company. Gould operated the battery-breaking operations until April 1981 when it shut down its battery-breaking operations.

 In September, 1982, the Pennsylvania Department of Environmental Resources ("DER") advised Gould that no remediation would be necessary and no enforcement actions would be taken at the site unless battery-breaking operations resumed. However, the EPA began investigating the Marjol Site in 1987 and after performing preliminary tests, concluded that there may be "an imminent and substantial endangerment to the public health, welfare or the environment."

 In April, 1988, the EPA and Gould entered into a Consent Agreement and Order pursuant to § 106(a) of CERCLA, 42 U.S.C. § 9606(a), to conduct site stabilization activities concerning lead and other hazardous substances at the Marjol Site and other residential properties.

 In May, 1990, Gould entered into a second consent order, this one with both the EPA and DER. This order was based on the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6928(h). Pursuant to this second consent order, Gould agreed to perform a RCRA Facility Investigation and Corrective Measure Study ("CMS") at the Marjol Site. EPA is currently evaluating Gould's CMS, and will ultimately select a final remedy for the Marjol Site.

 Gould initiated the above-captioned matter as a cost recovery action pursuant to § 107 (a) (4) (B) of CERCLA and, in the alternative, a contribution action pursuant to § 113(f) of CERCLA. On June 8, 1995, this Court entered Case Management Order No. 5 ("CMO No. 5"). The parties were directed to address the question of whether Gould can bring a § 107 cost recovery action or whether Gould is limited to a § 113 contribution action. The determination of which section(s) Gould can proceed under also affect the issue of who is responsible for the "orphan shares" and the corresponding statute of limitations for section 107 and section 113. The parties have adhered to "CMO No. 5" and the issue concerning whether the action is a § 107 cost recovery action or a § 113 contribution action is now ripe for adjudication.

 DISCUSSION

 Nature of Action

 Defendants' motion for partial summary judgment is brought pursuant to Federal Rule of Civil Procedure 56(c). A party is entitled to summary judgment where:

 
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

 Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 The issue addressed in Defendants' motion is purely one of law. Gould has asserted a cost recovery action under § 107 of CERCLA or in the alternative a contribution action under § 113 of CERCLA. The issue before this Court is whether Gould can maintain both actions or are they limited to bringing a § 113 contribution action.

 CERCLA

 Section 107(a) of CERCLA imposes liability on four classes of potentially responsible parties ("PRPs"): (1) the owner and operator of the facility; (2) any person who owned or operated the facility at the time of disposal of any hazardous substance; (3) any person who by contract, agreement, or otherwise arranged for disposal or treatment of hazardous substances owned or possessed by that person; and (4) any person who accepted any hazardous substances for the transport to disposal or treatment sites selected by that person. 42 U.S.C. § 9607(a)(1)-(4).

 Section 113(f)(1) of CERCLA states, "Any person may seek contribution from any other person who is liable or potentially liable under section 9607 (a) of this title, during or following any civil action under section 9606 of this title or under section 9607 (a) of this title.... In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate."

 Third Circuit Decisions

 The issue presently before this Court has not been directly ruled upon by the Third Circuit and as such, we are not bound by precedent. The Third Circuit has implicitly accepted the position of the various circuits that a cost recovery claim by a private PRP is a claim for contribution under § 113 of CERCLA. In Smith Land & Improvement Corp. v. Celotex Corp., 851 F.2d 86 (3rd Cir. 1988), cert. denied, 488 U.S. 1029, 102 L. Ed. 2d 969, 109 S. Ct. 837 (1989), a case originally brought in this Court, the EPA informed the site owner that unless it remediated the site, EPA would perform the work and seek recovery of its costs. The owner of the site settled with EPA and incurred costs cleaning the site. The owner then brought an action against the prior owner of the site under § 107 to recover those costs.

 While not directly holding the action to be a § 113 contribution action, the Third Circuit held, among other things, that in the context of a private CERCLA claim, the three defenses listed in § 107(b) are not exclusive and that a defendant may also raise equitable defenses. 851 F.2d at 89. Thus, the Third Circuit all but recognized that a cost recovery claim by a private PRP is a claim for contribution under § ...


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