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KAUFMAN v. UNISYS CORP.

November 30, 1994

KAUFMAN AND BROAD-SOUTH BAY, Plaintiff,
v.
UNISYS CORPORATION, et al., Defendants.


ROBERT P. AGUILAR, United States District Judge


The opinion of the court was delivered by: ROBERT P. AGUILAR

Plaintiff Kaufmann and Broad-South Bay, Inc. ("K&B") moves for a pre-trial determination of certain issues relating to its CERCLA action against defendants Unisys Corporation ("Unisys"), Doudell Trucking Company ("Doudell"), and Diamond Tank and Transportation Lines, Inc. ("Diamond"). The court has read the moving and responding papers and heard the oral argument of counsel. Set forth below is the court's ruling on the issues raised in K&B's motion.

 BACKGROUND

 K&B filed this CERCLA action to recover a portion of these clean-up costs from defendants, who allegedly bear some responsibility for contamination of the property. Duodell and Diamond allegedly transported the waste to the property, while Unisys is the successor in interest to the alleged originator of the waste, Memorex Corporation.

 ANALYSIS

 1. Joint and Several Liability Under CERCLA

 CERCLA provides for two different kinds of legal actions by which parties can recover some or all of the costs associated with clean-ups: cost recovery actions under 42 U.S.C. § 9607(a), and contribution actions under 42 U.S.C. § 9613(f)(1). The question here is whether a potentially responsible party ("PRP") under CERCLA is restricted to bringing a contribution claim under § 9613(f) or whether it may pursue a cost recovery action under § 9607(a). *fn1" The answer has import because liability is joint and several for cost recovery actions, but merely several for contribution actions. See O'Neil v. Picillo, 883 F.2d 176, 178 (1st Cir. 1989) cert. denied, 493 U.S. 1071, 110 S. Ct. 1115; United States v. Conservation Chemical Co., 619 F. Supp. 162, 229 (W.D. Mo. 1985).

 K&B takes the position that a private PRP is free to bring a cost recovery action as long as it has initiated a clean-up voluntarily and not as a result of civil actions brought by the United States or state. The defendants maintain that only innocent parties may sue for full cost recovery under § 9607(a), and that liable parties under CERCLA are limited to bringing contribution actions under § 9613.

 Section 9607(a) makes covered parties under CERCLA "liable for ... all costs of removal or remedial action incurred by [government entities] and any other necessary costs of response incurred by any other person consistent with the national contingency plan." Section 9613(f)(1) provides that "any person may seek contribution from any other person who is liable or potentially liable under section 9607(a)" for response costs. The First Circuit recently sought to clarify the distinction between these two provisions in United Technologies v. Browning-Ferris Industries, Inc., 33 F.3d 96 (1st Cir. 1994). In that case, the court held that a responsible party under CERCLA is restricted to bringing a contribution claim under § 9613. Id. at 99. In reaching this conclusion, the court began by defining the term "contribution" appearing in § 9613(f). Giving the term its customary legal meaning, the court defined "contribution" as "an action by and between jointly and severally liable parties for an appropriate division of payment one of them has been compelled to make." Id. at 99 (quoting Akzo Coatings Inc. v. Aigner Corp., 30 F.3d 761, 764 (7th Cir. 1994)). The court then adapted this definition to CERCLA cases and concluded that an action by a responsible party to recover response costs from another responsible party is a contribution action under § 9613(f). By contrast, the court characterized actions brought by innocent parties - parties who are not themselves liable - as cost recovery actions under § 9607(a). After distinguishing cost recovery from contribution actions, the court held that the two types of actions are "distinct and do not overlap." Id. at 100. In support for this conclusion, the Court pointed out that the section of CERCLA governing the statute of limitations for cost recovery actions - § 9613(g)(2) - is entitled "Actions for recovery of costs." The court reasoned that this phrase suggests full recovery of costs and that "it is sensible to assume that Congress intended only innocent parties to ... recoup the whole of expenditures." Id. In addition, the court recognized that allowing a liable party to pursue a cost recovery action would swallow the three year limitations for contribution actions found in § 9613(g)(3). If cost recovery actions and contribution actions are not viewed as separate and distinct avenues of recovery, a responsible party could avoid the three year limitations period for contribution actions by simply labeling its action a cost recovery action under § 9607, which has a six year limitations period. See § 9613(g)(2).

 Although not binding on this court, United Technologies is persuasive authority. Moreover, numerous cases which have addressed the same issue are in accord with the holding of that case. See Akzo, supra, 30 F.3d at 764 (defining suit by one responsible party against another as a contribution action); Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 672 (5th Cir. 1989) (when one party sues another responsible party for its share of response costs, the claim is one for contribution); Transtech Industries, Inc. v. A&Z Septic Clean, 798 F. Supp. 1079, 1087 (D.N.J. 1992) (same).

 K&B attempts to narrow the United Technologies holding, arguing that it applies only to actions brought by responsible parties who have been sued by the United States or a state under § 9607 or § 9606 of CERCLA. According to K&B, a responsible party who voluntarily incurs cleanup costs is entitled to assert a cost recovery action under § 9607(a). *fn2" While it is true that the plaintiff in United Technologies had been sued by the EPA, nothing in that case suggests that responsible parties which have not been subject to a government enforcement actions are entitled to bring suit under § 9607(a). Rather United Technologies clearly holds that only innocent parties may bring cost recovery actions and makes no distinction between liable parties who have been forced to incur cleanup costs and those who have done so voluntarily. 33 F.3d at 100. Thus, any and all responsible parties, even those who have expended response costs voluntarily, are confined to bringing contribution actions under § 9613(f).

 Although United Technologies intimates that only federal or state governments may sue for full cost recovery under § 9607(a), it is clear that in certain circumstances private parties can sue under § 9607(a). See Akzo Coatings, supra, 30 F.3d 764. In Akzo Coatings, plaintiff Akzo, a company which had generated hazardous waste, cleaned up a site at the behest of the EPA and then sued other PRPs - some of which had entered into settlement agreements with the government - to recoup its expenses. Akzo attempted to label its suit a § 9607(a) cost recovery action, ostensibly to avoid the ban on seeking contribution from parties who have, settled with the EPA. See § 9613(f)(2). The Seventh Circuit rejected Akzo's attempt to characterize its claim as a cost recovery action, but acknowledged that there are situations where private parties can sue under § 9607(a) for full cost recovery:


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