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WASTE MGMT. OF PENNSYLVANIA v. CITY OF YORK

November 21, 1995

WASTE MANAGEMENT OF PENNSYLVANIA, INC., Plaintiff
v.
CITY OF YORK, Defendants



The opinion of the court was delivered by: VANASKIE

 Pursuant to this Court's May 26, 1993 Amended Scheduling Order (Dkt. Entry 22), Plaintiff Waste Management of Pennsylvania, Inc. ("WMPA"), moves for a ruling that a settlement agreement between the City of York (the "City") and the United States Environmental Protection Agency ("EPA") does not immunize the City from liability on claims asserted against it by WMPA. Specifically, at issue is whether an administrative order by consent ("AOC") entered into between EPA and the City pursuant to Section 122(h) of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9622(h), insulates the City from any liability to WMPA on its claims under CERCLA and state law for costs WMPA has incurred and will incur at the Old City of York Landfill Superfund Site (the "Site"). The City, joined by EPA as an intervenor, argues that WMPA's claims are barred by CERCLA's "contribution protection" provisions, which essentially provide that a party that has resolved its liability to the United States "shall not be liable for claims for contribution regarding matters addressed in the settlement." 42 U.S.C. §§ 9613(f)(2) and 9622(h)(4). WMPA argues that Section 122(h), the statutory authority for the EPA settlement with the City, only authorizes administrative agency resolution of claims "for costs incurred by the United States Government. . . ." 42 U.S.C. § 9622(h)(1) (emphasis added). Because WMPA is not seeking contribution for its potential liability to the United States for costs the Government may have incurred, but is instead pursuing claims for costs which WMPA itself has incurred, WMPA contends that the settlement with EPA does not immunize the City front liability.

 The text of Section 122(h), the context of this legislative authorization of administrative settlements of response costs, and the policies underlying CERCLA support WMPA's contention. Succinctly stated, the matters addressed in a § 122(h) administrative settlement are necessarily limited to claims for costs incurred by the United States Government. A party who resolves its liability for such costs is entitled to protection against claims for contribution brought by others who contend that they have borne a disproportionate share of the costs incurred by the United States Government; but such a settling party is not entitled to protection against claims by non-settling parties who, like WMPA, have independently incurred costs in cleaning up a Superfund site. Accordingly, WMPA's motion will be granted. *fn1"

 PROCEDURAL HISTORY

 On June 22, 1992, WMPA commenced this action against the City for contribution relating to costs incurred and to be incurred in connection with the remediation of the Site, which is located in Springfield Township, York County, Pennsylvania. In its Complaint against the City (Dkt. Entry 1), WMPA seeks contribution from the City pursuant to CERCLA §§ 107(a) and 113(f), 42 U.S.C. §§ 9607(a) and 9613(f). WMPA also seeks to recover against the City pursuant to the Pennsylvania Hazardous Sites Cleanup Act ("HSCA"), 35 P.S. § 6020.101 et seq., the Pennsylvania Uniform Contribution Among Tort-feasors Act, 42 Pa.C.S.A. § 8321 et seq., and state common law.

 On August 3, 1992, the City filed its answer and affirmative defenses in which it asserted that "this action is precluded by reason of a settlement that City of York reasonably believes will be entered between the York [sic] and EPA." (Dkt. Entry 6 at 6.) On April 12, 1993, EPA and the City entered into a proposed AOC regarding the Site.

 On May 26, 1993, in an Amended Scheduling Order, the Court allowed the parties to brief the issue whether the proposed AOC, if approved and made final by EPA, would provide the City with immunity against WMPA's claims. (Dkt. Entry 22.) On June 14, 1993, WMPA filed a motion and supporting memorandum on the issues raised by the proposed AOC. (Dkt. Entry 23.) The City filed its response on July 16, 1993, (Dkt. Entry 27), to which WMPA filed a reply brief on July 30, 1993. (Dkt. Entry 28.) On August 12, 1993, the Court entered an Order staying all proceedings pending final EPA action on the proposed AOC. *fn2" (Dkt. Entry 31.)

 On June 30, 1994, the proposed settlement was made final and on July 1, 1994, EPA gave written notice of its approval of the AOC. See Dkt. Entry 36. Because of the amount of time which had passed since briefing on WMPA's motion was completed, the Court entered an Order on July 27, 1994, setting a schedule for filing supplemental memoranda in connection with WMPA's motion to update the previously filed briefs. (Dkt. Entry 37.) Pursuant to the Court's Order, WMPA filed a supplemental memorandum on September 2, 1994. (Dkt. Entry 40.) The City filed its supplemental memorandum in opposition on September 30, 1994 (Dkt. Entry 41), to which WMPA filed a supplemental reply memorandum on October 17, 1994. (Dkt. Entry 42.) On December 23, 1994, EPA filed a motion for leave to participate as an amicus curiae (Dkt. Entry 44), which this Court granted in an Order dated May 30, 1995 (Dkt. Entry 68).

 The City claims that its settlement with the EPA precludes each claim for relief asserted by WMPA. (Dkt. Entry 6, City's Answer and Affirmative Defenses.) WMPA argues that CERCLA section 122(h) does not authorize the EPA to settle liability for costs which WMPA has incurred or will incur in connection with the remediation at the Site. WMPA argues that section 122(h) only allows the City to settle liability for costs already incurred by EPA, not claims for costs incurred or to be incurred by a party other that the United States Government. Furthermore, WMPA argues that EPA's authority to grant contribution protection to settling parties extends only to those claims which are "matters addressed in the settlement." 42 U.S.C. §§ 9622(h)(4) and 9613(f)(2). Because WMPA's claims are not matters specifically addressed in the settlement, WMPA argues that the City is not shielded from WMPA's claims.

 FACTUAL HISTORY3

 The City owned and operated the Site as a municipal waste landfill from 1961 to 1975. In approximately 1978, the City sold the Site to its current owner, Dr. Roger Boser. From 1961 until 1968, the City was the sole operator of the Site. During that time, wastes containing hazardous substances were disposed of at the Site. In 1968 the City contracted with private companies to operate the Site. Those companies included Rite-Way Services, Inc. ("Rite-Way"), which later merged into WMPA. *fn4"

  In 1982, pursuant to CERCLA, the Site was listed on the National Priorities List (the "NPL"). *fn5" EPA notified the City, and Macke that they were potentially responsible parties ("PRPs") at the Site, and, in October, 1987, they entered into an AOC with EPA to perform the Remedial Investigation and Feasibility Study (the "RI/FS") in compliance with the National Contingency Plan and CERCLA, 42 U.S.C. §§ 9607 and 9622. See Dkt. Entry 24, Exh. "F."

 On September 30, 1991, EPA issued a Record of Decision in which it selected a remedy at the Site with an estimated cost of $ 8 million. In October, 1991, EPA sent Special Notice Letters to nine PRPs, including the City, requesting that they finance the remedy selected and that they reimburse EPA for past response cost incurred at the Site.

 On June 30, 1992, EPA issued a Unilateral Administrative Order ("UAO") to five parties (the "Respondents"). The Order required the Respondents, which did not include the City, to perform remedial action at the Site. Four of the parties, including WMPA, are complying or have complied with the Order and have incurred remediation costs. Three respondents, including WMPA, were former operators/transporters. The group as a whole operated or transported waste to the Site for less than half its operational life. One of the operator/transporters has commenced bankruptcy proceedings. See footnote 4, supra. The remaining two respondents are industrial generators who claim to be de minimis contributors to the waste at the Site.

 As noted above, the City is not subject to the UAO. Instead, EPA and the City entered into settlement negotiations that culminated with the AOC. The AOC provides for a schedule of payments to be made by the City to the EPA for past and future response costs. In return, EPA agrees not to sue the City, deems the City's liability at the Site resolved, and grants the City full contribution protection pursuant to 42 U.S.C. §§ 9613(c)(2) and 9622(h)(4). EPA and the City claim that the agreement is predicated on the City's limited financial resources. The City in fact contends that it cannot pay more than it has agreed to pay and infers that to require it to pay more would cause it to be unable to provide essential services, such as police and fire protection. (Dkt. Entry 27 at 4-5.)

 Under the Settlement, the City will pay EPA $ 615,000, or roughly seven percent (7%) of the costs of the remedy at the Site. This figure includes EPA's past response costs. The City argues that the settlement protects it against WMPA's private cost recovery action and insulates it from liability for the costs of remediating the Site. *fn6"

 DISCUSSION

 Essentially, WMPA's claim against the City is for contribution "for costs incurred and to be incurred" in connection with the remediation of the Site.

 
Contribution is a statutory or common law right available to those who have paid more than their equitable share of a common liability. Contribution is available under CERCLA because of the statute's imposition of joint and several liability, regardless of fault, on persons deemed responsible under CERCLA section 107 for the release or threatened release of hazardous substances from a facility.

 County Line Investment Co. v. Tinney, 933 F.2d 1508, 1515 (10th Cir. 1991). See United States v. Monsanto Co., 858 F.2d 160, 171 (4th Cir. 1988), cert. denied, 490 U.S. 1106, 104 L. Ed. 2d 1019, 109 S. Ct. 3156 (1989). In 1986, Congress amended CERCLA and added § 113(f), which expressly recognizes a right to contribution. *fn7" County Line, 933 F.2d at 1516. See also United States v. Colorado & Eastern Railroad Co., 50 F.3d 1530, 1535 (10th Cir. 1995); United States v. Cannons Engineering Corp., 899 F.2d 79, 92 (1st Cir. 1990); United States v. Asarco, Inc., 814 F. Supp. 951, 956 (D. Colo. 1993). However, the source of the right of contribution is § 107(a). County Line, 933 F.2d at 1516. CERCLA § 107 imposes strict liability on PRPs for costs associated with hazardous waste cleanup and site remediation and imposes joint and several liability on PRPs regardless of fault. County Line, 933 F.2d at 1515; Colorado & Eastern, ...


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