D. Admission of Liability Is Not Dispositive
Plaintiffs' attempt to disguise themselves as non-liable parties entitled to full cost recovery is not persuasive. The fact the ACOs and PRP agreements do not contain admissions of liability is not dispositive. New Castle, 903 F. Supp. at 779 ("while plaintiffs have not made a formal admission of liability, they have incurred a substantial liability in that they have agreed to incur substantial costs to clean up the landfill"); Hydro-Mfg., 903 F. Supp. at 276-77 (while plaintiff argues "the Consent Decree indicates no liability, ... it is [plaintiff's] status as [one of the four types of PRPs], not the existence of the decree, which triggers [CERCLA] liability"); see also Transtech, 798 F. Supp. at 1086 ("a claim against one liable party by a party who voluntary [sic] agreed to perform certain actions pursuant to a settlement agreement is still a claim for contribution").
Plaintiffs' action to recover for their remediation obligation is a claim for contribution. See New Castle, 903 F. Supp. at 779.
A response cost recovery action under section 107(a) is available only to an innocent party, a plaintiff who does not bear CERCLA liability, for recovery from liable or potentially liable parties of all of the cleanup costs the innocent plaintiff has incurred. See Colorado & E. R.R., 50 F.3d at 1536; United Technologies, 33 F.3d at 100; Saco Steel, 910 F. Supp. at 809; Ekotek Site, 881 F. Supp. at 1521. This limitation on PRPs has been widely accepted. See Colorado & E. R.R., 50 F.3d at 1536 ("there is no disagreement that both parties are PRPs ... therefore, any claim that would reapportion costs between these parties is the quintessential claim for contribution"); Ekotek Site, 881 F. Supp. at 1521 ("it is the plaintiff's status as a PRP, and not the degree of voluntariness with which it initiated cleanup activity or the settling status of other PRPs, which is controlling" in limiting plaintiff's claims to contribution) (emphasis in original).
E. Plaintiffs' Arguments
plaintiffs rely on a series of district court cases which expressly allowed private PRPs to bring section 107 claims against other PRPs. See, e.g., Bethlehem Iron Works, Inc. v. Lewis Indus., Inc., 891 F. Supp. 221, 224 (E.D.Pa. 1995); Transportation Leasing Co. v. California, 861 F. Supp. 931, 937-38 (C.D.Cal. 1993);
Companies for Fair Allocation v. Axil Corp., 853 F. Supp. 575, 579 (D.Conn. 1994); City of North Miami v. Berger, 828 F. Supp. 401, 407 n.7 (E.D.Va. 1993); Barton Solvents, Inc. v. Southwest Petro-Chem, Inc., 1993 U.S. Dist. LEXIS 14337, 1993 WL 382047, at *4-5 (D.Kan. 14 Sept. 1993);
Charter Township of Oshtemo v. American Cyanamid Co., 1993 U.S. Dist. LEXIS 13176, 1993 WL 561814, at *2 (W.D.Mich. 19 Aug. 1993), reconsideration denied, 910 F. Supp. 332 (1995); United States v. Kramer, 757 F. Supp. 397, 416 (D.N.J. 1991).
Almost all of these cases, however, focus on the "any other person" language of section 107(a)(4)(B) in reasoning private PRPs can maintain a suit against other PRPs under section 107(a) of CERCLA. See Bethlehem Iron Works, 891 F. Supp. at 225; Companies for Fair Allocation, 853 F. Supp. at 579; Barton Solvents, 1993 WL 382047, at *3; Charter Township, 1993 WL 56184, at *1-2; Transportation Leasing, 861 F. Supp. at 936. While a PRP qualifies as "any other person" under section 107(a)(4)(B), when a private PRP sues another PRP it is still looking to apportion liability between culpable parties. Akzo Coatings, 30 F.3d at 764; Bay Area Battery, 895 F. Supp. at 1533; Ekotek Site, 881 F. Supp. at 1521. The suit is therefore an action for contribution governed by section 113(f). Id. The cases cited by Plaintiffs fail to recognize this basic point.
Plaintiffs' further reliance on the United States Supreme Court's decision in Key Tronic Corp. v. United States and the Third Circuit's opinion in Hatco Corp. v. W.R. Grace and Co. is misplaced. The Key Tronic decision focused on whether attorney's fees are a necessary cost of response within a section 107 action. U.S. , 114 S. Ct. 1960, 1967 (1994). While the decision held an implied cause of action exists for private parties under section 107 of CERCLA, id. at 1966, it did not address, nor was the Court asked to address, the issue of whether a private PRP could bring a section 107 action. The district court opinion confirms the issue of joint and several liability imposed by section 107(a) was not before the court. Key Tronic Corp. v. United States, 766 F. Supp. 865, 868 n.1 (E.D.Wash. 1991) ("because the parties have stipulated to the quantum of liability for these items, the court will address solely the legal issue of recoverability of these items").
In Hatco, the Third Circuit considered issues involving the interpretation of a 1978 sales contract provision and entitlement to a jury trial in actions brought under sections 107 and 113 of CERCLA. 59 F.3d 400, 403-04 (3d Cir. 1995). The court did not address, nor was it asked to address, the issue of whether a private PRP could bring a section 107 action. The opinion itself indicates the basis for liability did not affect the Third Circuit's deliberations. See id. at 410 ("(in the circumstances here, it is of no practical importance whether Grace's obligation to clean up the site would be imposed by CERCLA, another Federal statute, the common law, or a New Jersey statute"). Plaintiffs, as admitted PRPs, are not "innocent parties" and cannot maintain a section 107(a) cost recovery action.
D. Natural Resource Damages
CERCLA authorizes recovery of "damages for injury to, destruction of, or loss of natural resources." 42 U.S.C. § 9607(a)(4)(C). Only the Federal government or an authorized representative of a state has standing to bring an action for natural resource damages recovery under section 107(a)(4)(C). 42 U.S.C. § 9607(f) (1) ("the President, or the authorized representative of any State, shall act on behalf of the public as trustee of such natural resources to recover for such damages"); Borough of Rockaway v. Klockner & Klockner, 811 F. Supp. 1039, 1049-50 (D.N.J. 1993); see also City of Heath v. Ashland Oil, Inc., 834 F. Supp. 971, 977 (S.D.Ohio 1993); City of Toledo v. Beazer Materials and Servs., Inc., 833 F. Supp. 646, 651-52 (N.D.Ohio 1993); Town of Bedford v. Raytheon Co., 755 F. Supp. 469, 472-75 (D.Mass. 1991); City of Philadelphia v. Stepan Chem. Co., 713 F. Supp. 1484, 1489-90 (E.D.Pa. 1989). A municipality or other political subdivision of a state is not an authorized representative unless specifically appointed by the governor of the state. 42 U.S.C. § 9607(f) (2) (B) ("the Governor of each State shall designate State officials who may act on behalf of the public as trustees for natural resources under this chapter"); Borough of Rockaway, 811 F. Supp. at 1049; see also City of Heath, 834 F. Supp. at 977; City of Toledo, 833 F. Supp. at 652; Town of Bedford, 755 F. Supp. at 472; City of Philadelphia, 713 F. Supp. at 1489.
Plaintiffs voluntarily dismissed claims in Count I concerning natural resource damages with respect to all defendants. See Stipulation. A plaintiff who lacks standing to bring an action for natural resource damages recovery also lacks standing to bring an action for declaratory judgment regarding liability for future natural resource damages recovery. See generally Borough of Rockaway, 811 F. Supp. at 1049-50; see also City of Heath, 834 F. Supp. at 977; City of Toledo, 833 F. Supp. at 652; Town of Bedford, 755 F. Supp. at 472, 475. Plaintiffs do not allege, individually or collectively, they have been appointed as authorized representatives by the governor of the State of New Jersey.
All derivative claims for declaratory relief relating to natural resource damages in Count III must therefore be dismissed.
For the reasons set forth above, the Motion for Judgment is granted. Count I and derivative claims involving section 107 of CERCLA, 42 U.S.C. §§ 9707(a), in Count III of the Amended Complaint are dismissed with respect to all defendants. Derivative claims for declaratory relief relating to natural resource damages in Count III of the Amended Complaint are also dismissed with respect to all defendants.
Dated: 10 April 1996