The opinion of the court was delivered by: Martini, District Judge.
On January 29, 1997, E. I. Du Pont De Nemours (hereinafter "DuPont" or Plaintiffs) and other captioned Plaintiffs brought an action for the recovery of environmental clean-up, removal, and response costs against the United States of America and named departments of the national government (hereinafter United States or the Government or Defendants). The Complaint specified fifteen named facilities located in New Jersey and in other states. The Complaint was brought under three theories of liability: (Count 1) Section 107(a) of CERCLA,*fn1 42 U.S.C. § 9607(a) _ direct liability; (Count 2) Section 113(f) of CERCLA, 42 U.S.C. § 9613(f) _ contribution liability; and (Count 3) recoupment liability under Sections 113(f) and 113(g) of CERCLA. On December 31, 1997, Judge John C. Lifland dismissed without prejudice the first and third counts as to all Defendants. Therefore, only count two, the CERCLA contribution theory of liability under Section 113(f), remains.
The parties have proceeded with attempts at mediation. Unfortunately, to date, these efforts have failed. Pursuant to a pretrial order of Magistrate Judge Hedges, the parties have engaged in extensive discovery with regard to the Louisville, Kentucky facility. The purpose of this focused discovery was to allow that single facility to provide a test case before proceeding to costly and time consuming pretrial and trial proceedings with regard to the remaining fourteen sites and to allow the parties an opportunity to settle their dispute as briefing on legal and factual issues clarified the parties' competing claims and defenses. Discovery is now complete. Before this Court is
Defendants' motion for summary judgment.*fn2
This matter has been fully briefed. Oral argument was held on November 24, 2003. The Court has carefully considered the relevant law (including persuasive case law authority from other jurisdictions), the submissions of the parties, the record as a whole, including oral argument, and has drawn all reasonable inferences in favor of the non-movant. The Court concludes with regard to Plaintiffs' one remaining cause of action, Count 2 bringing an action pursuant to CERCLA Section 113(f) contribution liability, that there is no issue of genuine material fact that might affect the outcome of the suit under governing law.*fn3 Therefore for the reasons elaborated below, the Court GRANTS Defendants' motion for summary judgment.
In or about 1941, DuPont began to operate a plant in Louisville, Kentucky (hereinafter "the Facility"). During World War II, and pursuant to contracts with the Defendants, the Facility manufactured the following products for the Defendants: neoprene, calcium carbide, butadiene, chlorobutadiene, and mono-vinylacetylene. See Pl. Compl. ¶¶ 48-49.
With respect to the Facility, the Government has admitted that the Defense Plant Corporation (hereinafter "DPC") owned the Facility between 1942 and 1948; that the United States has succeeded to any CERCLA liability arising from DPC's ownership of the property; that between 1942 and 1948 at least one hazardous substance was disposed of at the Facility; that there has been a release of or a threatened release of at least one hazardous substance from the Facility into the environment; and that this release or threat of release has caused DuPont to incur environmental response costs. See Memorandum and Order at 3-4, Civ. A. No. 97-497 (JCL) (March 2, 2000).
DuPont does not dispute that since 1948 it has owned the Facility. See Report of Robert M. Zoch at 17 (hereinafter "Zoch Report"). Nor does DuPont dispute that under prevailing CERCLA law, it is liable for some equitable share of the clean up costs for pre-1948 and/or post-1948 environmental harms. See id. at 4.
Summary judgment may be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. An issue of material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the non-movant. In deciding a motion for summary judgment, the Court must construe the facts and reasonable inferences from those facts in a light most favorable to the non-movant. However, only disputes about facts that might affect the outcome of the suit under governing law will preclude entry of summary judgment. Once the initial moving party has carried its initial burden of establishing an absence of a genuine issue of material fact, the non-movant must do more than simply show that there is some metaphysical doubt as to those facts. No issue for trial exists unless the nonmoving party can adduce sufficient evidence favoring it on the disputed factual issue such that a reasonable jury could return a verdict in that party's favor. See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
III. LEGAL ISSUES AS PUT FORWARD BY THE PARTIES
In the instant motion, Defendants have advanced three arguments supporting summary judgment. Defendants primary argument is that CERCLA Section 113(f), 42 U.S.C. § 9613(f), does not create liability against the United States in the absence of a prior or ongoing Section 106 or Section 107 action, 42 U.S.C. §§ 9606-07. The Government supports its position on the basis of the canons of statutory interpretation and the argument put forward by the dissenters in Aviall II.*fn4 The Plaintiffs vigorously contest the Government's legal position and support their position largely relying on the argument put forward by the majority in Aviall II: a recoupment action _ even absent a primary lawsuit brought against the contribution action plaintiff _ satisfies the procedural requirements of CERCLA. In the alternative Plaintiffs argue that a (state or federal) RCRA permit program satisfies the indicia necessary for a primary action, a necessary procedural precondition of a contribution action in the CERCLA context. In the Third Circuit, however, the precise reach of Section 113(f) is settled.*fn5 For this reason, the Court is not persuaded by the interpretive position put forward by either the Aviall II majority or the dissenters. (And for reasons made clear below, a RCRA permit program cannot function as a primary action or lawsuit making possible a derivative contribution action.) Rather, the Court puts forward an alternative interpretation of the statute as controlled by the law of this Circuit.
The Government puts forwards two additional defenses: (i) a statute of limitations defense; and (ii) a defense based upon Plaintiffs' allegedly having failed to clean up the Louisville sites consistent with the National Contingency Plan. The Court examines these two defenses summarily at the end of this opinion.
A. The Meaning of CERCLA Section 113(f), 42 U.S.C. § 9613.
The primary question before this Court on this motion is whether or not the CERCLA contribution provision, Section 113(f), 42 U.S.C. § 9613, on these facts and given the particular procedural posture of this case, potentially makes the Government liable to DuPont for clean up, removal, and response costs and damages relating to the Louisville, Kentucky site. Section 113(f)(1) states:
42 U.S.C. § 9613(f) Contribution
(1) Contribution. Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title. Such claims shall be brought in accordance with this section and the Federal Rules of Civil Procedure, and shall be governed by Federal law. In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. 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 section 9606 of this title or section 9607 of this title.
42 U.S.C. § 9613(f)(1) (italics and underscores added).
The two italicized passages above appear _ at first blush _ to be in some substantial tension. The first italicized passage establishes that a precondition for bringing a contribution claim under this provision is the existence of an ongoing or completed CERCLA suit brought under Section 106 (administrative clean up order issued by the Government) or Section 107 (action for direct liability). See 42 U.S.C. §§ 9606-07. It is undisputed that _ in the instant litigation _ no such prior suit has been initiated against any party to this litigation. On the other hand, the second italicized passage might suggest that the prior provision is not mandatory, and that an action may be brought by any (injured or potentially responsible) party against any other potentially responsible party (hereinafter "PRP"), at any time _ before, during, or after a Section 106 or 107 action is brought. If this second passage is, in fact, a savings provision, and if this latter interpretation of that provision is correct, then any significant substantive content that might be thought to be found in the prior passage is largely undermined. The briefing of the parties has focused largely _ and the Court thinks mistakenly _ on this tension.*fn6 In the Court's view the fundamental legal question that must be resolved is: "What is a contribution action?" And as a subsidiary matter, the Court must also address a related question of application of the law to the facts: i.e. "Given the procedural posture and the uncontested facts of this suit, is this case a proper action for contribution?" In answering these two related questions this Court is faced with a question of statutory interpretation _ one that has been squarely addressed by the Third Circuit.
1. What is a Contribution Action under CERCLA?
In the Third Circuit, the Court is guided by the holding of In re Reading, 115 F.3d 1111 (3d Cir. 1997) (Roth, J.), which defines the legal elements ...