United States Third Circuit

In plaintiffs' suit against twenty-three defendants for cost recovery and contribution under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and the Pennsylvania Hazardous Sites Cleanup Act to recover costs that the plaintiffs had paid to the EPA, arising from the disposal of millions of gallons of toxic waste over six years at the Boarhead Farms site, judgment of the district court is vacated and remanded where: 1) the district court is instructed to make a clear and unequivocal finding as to when the EPA completed its removal action, as such a finding will allow the district court to determine whether the EPA's December 6, 2001 filing of the suit to enforce the OU-2 Consent Decree was timely, and thus whether there is a time-bar to plaintiffs' recovering the approximately $7 million they paid to reimburse the EPA for past costs; 2) TI and Argere should be permitted to go forward with their section 107(a) cost recovery claims to recoup costs paid as part of the shared expense of cleaning up the Boarhead site; 3) because Cytecm Ford, SPS, and TI are shielded from contribution counterclaims under section 113(f)(2) and therefore do not have section 197(a) claims for costs incurred pursuant to the consent decrees, the district court should proceed solely under section 113(f) as to those claims; and 4) while proceeding under section 113(f) to allocate liability among the parties, the district court may not consider the June 23rd stipulation as evidence against Carpenter, at least not without addressing the evidentiary problems noted.

Appellate Information

• Argued 12/17/2009
• Decided 04/12/2010
• Published 04/12/2010

Judges

• Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges.

Court

• United States Third Circuit

Counsel

• For Appellant:
  
• Robert D. Fox [argued], Neil S. Witkes, Kathleen B. Campbell, Manko, Gold, Katcher & Fox, LLP, Bala Cynwyd, PA, for Appellant.


• For Appellees:
  
• Glenn A. Harris [argued], Amy M. Trojecki, Ballard Spahr Andrews & Ingersol, LLP, Voorhees, NJ, for Appellees.