05-3299 Metropolitan Water Reclamation District of Greater Chicago v. North American Galvanizing & Coatings, Inc.

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A potentially responsible party may bring a cause of action under sec. 107(a) of CERCLA, even if it is barred from action under sec. 113(f).

“Without question, Metropolitan is a ‘person’ under CERCLA because it is a ‘firm’ or a ‘corporation’ within the meaning of the act. Id. § 9601(21). Moreover, the complaint in the present case alleges that Metropolitan Water incurred ‘“response” costs within the meaning of § 101(25) of CERCLA (42 U.S.C. § 9601(25)) including investigation, monitoring and clean-up costs.’ R.17 at 14. Finally, the allegations in the complaint make clear that Metropolitan Water neither has settled any liability with a government entity nor has been the subject of a CERCLA suit for damages. These allegations adequately plead a cause of action under § 107(a).

“Recognizing in § 107(a) a right of action for Metropolitan Water also appears in line with the explicit savings clause found in § 113(f)(1). The last sentence of § 113(f)(1) provides: ‘Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under [§ 106] of this title or [§ 107] of this title.’ 42 U.S.C. § 9613(f)(1). As the Supreme Court stated in Cooper Industries, ‘the sentence rebuts any presumption that the express right of contribution provided by the enabling clause [of § 113(f)] is the exclusive cause of action for contribution available to a PRP.’ Cooper Indus., 543 U.S. at 166-67.”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Zagel, J., Ripple, J.