The Western District of Washington Leaves a PRP without a Remedy, but Upholds the Broader Policy Objectives of CERCLA.
Posted By James J. Periconi, Esq. on May 26, 2009
The Western District of Washington also recently followed the holding from the Aviall case. See Port of Tacoma v. Todd Shipyards Corp., 2009 U.S. Dist. LEXIS 5884 (W.D.Wa., January 14, 2009). The Port of Tacoma sued Todd Shipyards in a contribution action under CERCLA § 113(f) for recovery above an equitable share of costs the Port incurred in remediating the subject Superfund site, which had been used for shipbuilding operations during World War I and World War II, pursuant to a consent decree with the United States. Todd then brought a third party suit against the United States under § 113(f) for contribution, alleging that the United States is also a potentially responsible party (“PRP”) as an “operator”, “owner” and “arranger” due to its control over the shipbuilding operations at the site. Todd argued that to the extent that the Port prevails against Todd, Todd should not pay the United States’ equitable share.
On a motion by the United States for reconsideration of the Court’s earlier decision denying dismissal of Todd’s third-party claim, the Court ultimately granted the U.S.’s motion to dismiss Todd’s complaint, finding that a PRP can only bring a § 113(f) contribution claim if it had previously been sued under either § 106 or § 107 (following the Supreme Court’s decisions in Aviall and Atlantic Research, both discussed in our last CERCLA post).
In this case (unlike in the Second Circuit W.R. Grace case that was the subject of the prior post), the court did not consider whether Todd has a cause of action under § 107(a) and no facts in the Court’s opinion discuss whether Todd incurred response costs under § 107(a) that would provide the basis for a cause of action against other PRPs. Indeed, it appears that given the Court’s failure to mention these facts, Todd did not incur any response costs in connection with remediating the site, but merely sought an off-set against what it might be required to pay the Port in the latter’s suit. The Court said that Todd could pursue its contractual indemnification claims against the U.S. in the Court of Federal Claims.
The result is that in the Port’s § 113(f) action, Todd will only be liable for its equitable portion of the Port’s damages. It appears then that the Port will not be able to recover any of the U.S. share of liability that it had paid in remediating the site under a consent decree with the U.S. Query whether the Port could have brought its suit against Todd under § 107 for cost recovery, allowing Todd to pursue a contribution claim against the U.S. under § 113(f).