993 F. Supp. 2d 693
E.D. Mich.2014Background
- Ford and Severstal sued MichCon under CERCLA for contamination at the Schaefer Road Area (SRA); MichCon filed a third-party complaint against the United States seeking cost recovery under § 107(a) and contribution under § 113(f).
- Prior related litigation produced two consent decrees: an RMC decree and the SRA Consent Decree (SRA CD) entered Oct. 9, 2012 resolving Plaintiffs’ claims against the United States as to the SRA.
- MichCon conceded its § 113(f) contribution claim is barred by the SRA CD; it maintains a § 107(a) cost-recovery claim for voluntary response costs it allegedly incurred.
- The United States moved to dismiss MichCon’s § 107(a) claim, arguing MichCon is a PRP so its § 107(a) claim is effectively a contribution claim barred by the SRA CD and by federal common law protections for settling parties.
- The court framed the key legal question as whether a consent decree that bars contribution claims against settlors can also bar a non-settlor’s § 107(a) cost-recovery claim for voluntary costs.
- The court found MichCon pleaded the elements of a § 107(a) claim and denied the United States’ motion to dismiss, holding the SRA CD did not bar MichCon’s § 107(a) cost-recovery claim at the 12(b)(6) stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MichCon may pursue § 107(a) cost recovery after Plaintiffs settled with the U.S. | MichCon: It incurred voluntary, necessary response costs and may recover under § 107(a)(4)(B); the SRA CD does not, by its terms, bar § 107(a) cost-recovery claims by non-settlors. | U.S.: MichCon is a PRP; its suit is effectively a contribution claim (apportionment among PRPs) and thus is barred by the SRA CD’s protection against contribution claims and by federal common law. | Court: Denied dismissal—MichCon’s § 107(a) claim is distinct from a § 113(f) contribution claim and is not barred at pleading stage by the SRA CD. |
| Whether a consent decree may bar non-settlors’ § 107(a) claims via federal common law | MichCon: Consent decree language preserves the U.S.’s rights against non-parties and the decree does not expressly bar § 107(a) claims; federal common law does not convert § 107(a) claims into barred contribution claims. | U.S.: Relies on federal common law (McDermott) to argue settling with some defendants should protect the United States from contribution-like suits by non-settlors over matters addressed in the decree. | Court: Rejected U.S. argument here—because MichCon’s claim is pleaded as § 107(a) cost recovery, the U.S. cannot recharacterize it as contribution at the 12(b)(6) stage; no controlling authority bars § 107(a) claims by non-settlors on these grounds. |
Key Cases Cited
- Atlantic Research Corp. v. United States, 551 U.S. 128 (Sup. Ct. 2007) (distinguishes § 107(a) cost recovery from § 113(f) contribution; PRPs can recover under § 107(a) for voluntary costs)
- Cooper Industries, Inc. v. Aviall Servs., Inc., 543 U.S. 157 (Sup. Ct. 2004) (§ 113(f)(1) contribution arises only "during or following" a civil action under § 106 or § 107)
- McDermott, Inc. v. AmClyde, 511 U.S. 202 (Sup. Ct. 1994) (federal common law discussion on settlement credit and protection from contribution claims in maritime context)
- ITT Indus., Inc. v. Borg-Warner, Inc., 506 F.3d 452 (6th Cir. 2007) (explains CERCLA allocation between § 107 and § 113 depends on circumstances leading to costs)
- Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d 344 (6th Cir. 1998) (pre-Atlantic Research decision treating PRP § 107 actions as contribution-like; court treats as superseded by Atlantic Research)
- Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599 (Sup. Ct. 2009) (recognizes CERCLA imposes strict liability)