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October 16, 1996

GEORGE BUMB, and DOES 1 through 500, inclusive, Defendants.

The opinion of the court was delivered by: EDWARD


 Defendant moves to dismiss Plaintiffs' complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P., for failure to state a claim upon which relief can be granted. This partial order concerns only Defendant's motion to dismiss Plaintiffs' cost recovery claims under 42 U.S.C. § 9607(a) *fn1" on the ground that Plaintiffs are limited to bringing a suit for contribution under § 9613(f)(1). Defendant's motion to dismiss Plaintiffs' claims, including the § 9607(a) claims, on other grounds, remains under submission with the court. For the reasons set forth below, the motion to dismiss Plaintiffs' § 9607(a) claims is DENIED; however, the scope of these claims, and the remedies available to Plaintiffs, are clarified and limited as set forth below.


 Plaintiffs' complaint, filed April 26, 1996, alleges violation by Defendant of the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"). Cmplt. P 1. Plaintiffs allege that they are the owners of a portion of a seven acre inactive disposal site located in Campbell, California ("the "Campisi Landfill"). Cmplt. PP 3 & 7. *fn2" They allege that Defendant George Bumb operated the Campisi Landfill from approximately 1953 to 1959 as a disposal site, and that the site was closed in 1959 or 1960. Cmplt. PP 4, 7 & 10.

 Plaintiffs allege that, in 1989, under the direction of the Regional Water Quality Control Board and the Bay Area Air Quality Management District, the City of Campbell arranged for the preparation of two solid waste assessment test reports. They allege that the reports revealed the presence of hazardous substances at the Campisi Landfill. Cmplt. PP 11-14. Plaintiffs further allege that the site was supposed to have been used for the disposal of lawn and garden clippings, demolition debris, and other non-hazardous material, and that Plaintiffs were unaware of the alleged contamination prior to the test reports. Plaintiffs allege that, when the site was closed, the waste was covered over with 2-3 feet of gravel, and, thereafter, with 3-5 feet of asphalt. Cmplt. PP 8, 9 & 16. Plaintiffs allege that the presence of the hazardous substances is the result of the ownership, operation and disposal at the Campisi Landfill by Defendant, and that, "as a result of the contamination caused by defendants, plaintiffs have been required to incur response costs necessary to investigate the nature of the contamination of the property." Cmplt. P 15. *fn3"

 Plaintiffs seek, inter alia, to recover from Defendant necessary costs allegedly incurred by Plaintiffs in responding to the release and threat of release of hazardous substances from the Campisi Landfill. Plaintiffs frame their claims for recovery of these costs under § 9607(a) of CERCLA. Plaintiffs also seek declaratory judgment under 42 U.S.C. § 9613(g)(2) of CERCLA and under the Declaratory Judgment Act (28 U.S.C. §§ 2201-2202) that Defendant is solely and entirely liable under CERCLA for all future costs necessary to respond to and abate the release and threat of release of the hazardous substances from the facility. Cmplt. P 1.


 Pursuant to Rule 12(b)(6), a complaint may be dismissed for failure to state a claim upon which relief can be granted. For purposes of evaluating a motion to dismiss, the complaint is construed in the light most favorable to plaintiff and its allegations are taken as true. Abramson v. Brownstein, 897 F.2d 389, 391 (9th Cir. 1990). Dismissal can be based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognitable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990); Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir. 1984). However, a complaint should not be dismissed under Rule 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957).

 As to those portions of a complaint which the court finds do not state a claim for relief, leave to amend is ordinarily given freely. Fed.R.Civ.P. 15(a). A complaint or any claim in it should be dismissed without leave to amend only if "it is 'absolutely clear that the deficiencies of the complaint could not be cured by amendment.'" Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (citations omitted).


 Defendant's motion to dismiss Plaintiffs' § 9607(a) claims raises the much-debated question of whether a "potentially responsible party" may bring a cost recovery action under 42 U.S.C. § 9607(a), or is confined to bringing a contribution claim under 42 U.S.C. § 9613(f)(1). A "potentially responsible party" (or "PRP") is one who is itself potentially liable under CERCLA. The question is significant because liability for a cost recovery action pursuant to § 9607(a) is joint and several, while liability for a contribution action under § 9613(f)(1) is merely several and is apportioned by the court based on equitable considerations. Kaufman and Broad-South Bay v. Unisys Corp., 868 F. Supp. 1212, 1214 (N.D. Cal. 1994). *fn4"

 Defendant contends that Plaintiffs' § 9607(a) cost recovery claims must be dismissed because Plaintiffs, as current owners of the Campisi Landfill, are PRPs under CERCLA, and, therefore, limited to bringing a contribution claim under § 9613(f)(1). See Def. 's Motion at 9-10. Plaintiffs, on the other hand, maintain that § 9613(f)(1), which was adopted in 1986 as part of the Superfund Amendments and Reauthorization Act ("SARA"), does not affect a PRP's standing to bring a cost recovery action under § 9607(a). Plaintiffs alternatively argue that "innocent landowners" of an affected facility may bring an action under § 9607(a). See Pltfs.' Opp. at 10-22.

 Although the Ninth Circuit has not yet spoken directly on this issue, the First, Fifth, Seventh, Eighth, Tenth, and Eleventh Circuit Courts of Appeal have held that when one liable or potentially liable party sues another liable or potentially liable party, the action is one for contribution, and is governed, for remedies purposes, by § 9613(f)(1). United Technologies Corp. v. Browning-Ferris Idustries, Inc., 33 F.3d 96, 100 (1st Cir. 1994), cert. denied, U.S. , 115 S. Ct. 1176, 130 L. Ed. 2d 1128 (1995); Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761, 764 (7th Cir. 1994); Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1996 WL 487859, at *19; United States v. Colorado & Eastern Railroad Co., 50 F.3d 1530, 1536 (10th Cir. 1995); Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 672 (5th Cir. 1982); Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930 (8th Cir. 1995); see also Kaufman, 868 F. Supp. at 1216. The remaining Courts of Appeal have not yet ruled on the issue, and the decisions of district courts in these undecided circuits, including in the Ninth Circuit, are in sharp ...

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