Plaintiff Westinghouse owns a site that was previously used by Defendant United States for nuclear fuel reprocessing. Plaintiff sued under CERCLA 107 and 113(f) (42 U.S.C. Sections 9607 and 9613(f)) to recover response costs incurred. Several defendants brought a MSJ on the grounds that the Section 113(f) contribution action could not be brought without one of the following: (a) a pending Section 107 suit; (b) the establishment of liability in a former Section 107 suit; or, (c) an administrative or judicially approved settlement under CERCLA.
In Westinghouse Elec. Co. v. United States et al, 2008 U.S. Dist. LEXIS 57232 (E.D.Mo.: 7/08), the District Court agreed. The issue was resolved, as far as the District Court was concerned, by United States v. Atl. Research Corp., 127 S. Ct. 2331, 2007 U.S. LEXIS 7718 (2007). Among other arguments, Westinghouse claimed that the signing of an oversight cost agreement with the State of Missouri was equivalent to an administrative settlement for purposes of Section 9613(f)(3)(B); given what numerous other courts have said on the topic, it is no surprise that the District Court disagreed. Westinghouse also cited to two prior cases; the Court rejected that argument since both were dismissed without any finding of liability. Westinghouse also argued that a state court consent decree was sufficient; many courts have split on this issue, but this District Court noted that CERCLA was a federal issue. Section 9613(b). Since there is no mechanism for delegation of authority to the States under CERCLA, a state court decree is not the equivalent of a consent decree for Section 9613(f) purposes. MSJ was granted.
Given Atlantic Research, the conclusion of the District Court is no surprise. It also indicates that if a party contemplates using CERCLA following entering into a state consent decree, it is prudent to approach the regional EPA office and discuss entry of a consent decree with the fed's also. Some plaintiffs try to sue under state causes of action (e.g., contribution) to get around this issue and to avoid problems they may have with CERCLA (e.g., NCP compliance). In many Circuits this will not work because the federal courts have been willing to see through the tactic and find that the state counts are CERCLA contribution actions in diguise; the only exception, for the moment, to this piercing the pleading approach appears to be the 9th Cir.