Rumpke of Indiana, Inc. v. Cummins Engine Co., Inc.

• Decision Date: 19 February 1997
• Docket Number: No. 96-1650,96-1650
• Parties: , 65 USLW 2584, 27 Envtl. L. Rep. 20,596 RUMPKE OF INDIANA, INC., Plaintiff-Appellee, v. CUMMINS ENGINE COMPANY, INC., et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1235

107 F.3d 1235

44 ERC 1065, 65 USLW 2584, 27 Envtl.

L. Rep. 20,596

RUMPKE OF INDIANA, INC., Plaintiff-Appellee, v. CUMMINS ENGINE COMPANY, INC., et al., Defendants-Appellants.

No. 96-1650.

United States Court of Appeals, Seventh Circuit.

Argued June 6, 1996.

Decided Feb. 19, 1997.

Arthur J. Howe, Veronica Gomez, Schopf & Weiss, Chicago, IL, George Plews, Frederick D. Emhardt, argued, Plews, Shadley, Racher & Braun, Indianapolis, IN, for Plaintiff-Appellee.

Stanley C. Fickle, Peter J. Rusthoven, argued, John R. Maley, John M. Kyle, III, Barnes & Thornburg, Indianapolis, IN, Renee R. McDermott, Nashville, IN, Bradley B. Falkof, Barnes & Thornburg, Chicago, IL, for Defendants-Appellants.

Before BAUER, EASTERBROOK, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

The net of potential liability under the Comprehensive Environmental Response, Compensation and Liability Act, better known as CERCLA, 42 U.S.C. §§ 9601 et seq., is wide indeed, reflecting the need both to clean up the nation's toxic waste sites and the practical imperative to find the necessary money for the job. The cleanup will be less likely to occur if potentially responsible parties do not come forward, yet the often astronomical sums needed to restore these sites can deter prompt remedial action. CERCLA protects parties who settle claims with the government from liability for contribution in suits relating to "matters addressed" in administratively or judicially settled consent decrees. See § 113(f)(2), 42 U.S.C. § 9613(f)(2). In this interlocutory appeal, certified pursuant to 28 U.S.C. § 1292(b), we have been asked to decide several questions relating to the breadth of one of those settlements. The central issue is whether a 1982 consent decree approved in United States v. Seymour Recycling Corp., 554 F.Supp. 1334 (S.D.Ind.1982), to which Cummins Engine Co. and its fellow appellants were parties (to which we refer as the "Cummins group"), stands in the way of the efforts of Rumpke of Indiana, Inc. ("Rumpke"), either to recover its costs of cleaning up a site arguably not covered by the Seymour decree under § 107(a) of the Act, 42 U.S.C. § 9607(a), or to obtain contribution from the Cummins group under § 113(f)(1) of the Act, 42 U.S.C. § 9613(f)(1). We agree with the district court that the Seymour decree did not encompass the matters Rumpke is now raising and we accordingly affirm its order.

I

The background facts are relatively straightforward. In 1984, Rumpke bought a 273-acre dump known as the Uniontown Landfill from George and Ethel Darlage. At that time, the Darlages informed Rumpke that the landfill had never accepted hazardous waste. For reasons undisclosed on this record, Rumpke did not conduct its own inspection of the land for environmental hazards prior to the sale. In light of where we are today, it is easy to predict what happened next. In 1990, to its professed surprise, Rumpke discovered that the Darlages' beliefs about the landfill had been quite wrong. In fact, a cocktail of hazardous wastes had been deposited at Uniontown for many years, and volatile organic compounds (VOCs) were migrating to surrounding areas. Looking into the matter, Rumpke determined that much of this material had come from the Seymour Recycling Corporation, which was located about ten miles away in Seymour, Indiana. For many years, Seymour had distilled for reuse acetones, alcohols paint thinners, chlorinated solvents, and freon materials, all of which had been discarded by various manufacturers. The distilling process yielded both reusable solvents and a toxic sludge. Seymour disposed of the sludge by shoveling it into 55-gallon drums, or on other occasions, incinerating it and storing the resulting ash in similar drums. Rumpke believed that some of those 55-gallon drums made their way to the Uniontown landfill. Because Seymour Recycling was by this time out of the picture, Rumpke brought this action against the manufacturers that used to send materials to Seymour Recycling for processing.

Rumpke's lawsuit opened a Pandora's Box of its own. Whatever one might say about the Uniontown site, it had become clear in the 1980's that the Seymour site was an environmental disaster area. Seymour Recycling had left some 60,000 drums and 98 bulk storage tanks, in various stages of decay, strewn about the site. By 1980, the drums and tanks were leaking, exploding, and sending clouds of toxic chemicals into the air over nearby residential areas. The United States responded with a complaint in May 1980, alleging violations of section 7003 of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6973, and section 311 of the Clean Water Act, 33 U.S.C. § 1321. In 1982, the United States filed an amended complaint adding allegations under CERCLA, §§ 106 and 107, 42 U.S.C. §§ 9606 and 9607, which had been enacted in the meantime. The amended complaint added 24 new defendants who allegedly had transported hazardous wastes to the Seymour site for handling, storage, disposal, or treatment. At the same time, the State of Indiana and the County of Jackson moved to intervene in the action.

The amended complaint was accompanied by a proposed consent decree that was filed with the court, as required by § 122(d), 42 U.S.C. § 9622(d), which the court accepted in due course. See Seymour Recycling, 554 F.Supp. 1334, supra. The decree resolved all obligations and responsibilities of the settling companies with respect to "the Seymour site." The companies paid agreed amounts into the Seymour Site Trust Fund, which was then available to trustees to perform the work described in an exhibit to the decree. It provided for penalties in the event the work was not performed satisfactorily; it gave the United States and the State the right to access and inspect the site at all times until the work was completed; and it contained various administrative provisions. The decree also promised, in section XII, that the United States, the State, and the local governments would not bring any more civil actions against the settling companies:

... arising out of or related to the storage, treatment, handling, disposal, transportation or presence or actual or threatened release or discharge of any materials at, to, from or near the Seymour site, including any action with respect to surface cleanup and soil or groundwater cleanup at the Seymour site.

Our case arises because the defendants Rumpke wants to pursue--Cummins, Ford Motor Company, International Business Machines Corp., General Motors Corp., and Essex Group, Inc.--were among the Seymour settling parties.

II

After Rumpke filed its action with respect to the contaminated Uniontown site, the Cummins group moved for summary judgment against Rumpke's claims. They argued that Rumpke's suit was blocked by the language just quoted from the 1982 Seymour consent decree, by virtue of CERCLA § 113(f)(2), which reads as follows:

A person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement. Such settlement does not discharge any of the other potentially liable persons unless its terms so provide, but it reduces the potential liability of the others by the amount of the settlement.

The Cummins group reasoned that (1) the Rumpke suit presented "claims for contribution," and (2) the claims were "matters addressed in the settlement" by virtue of section XII of the decree. Specifically, with appropriate ellipses, they argued that section XII covered actions "arising out of ... the ... transportation ... of any materials ... from ... the Seymour site." Rumpke's claim against them alleged that materials from the named manufacturers had been transported from the Seymour site to the Uniontown site; thus, they asserted, it fell squarely within the language of section XII and the claim was barred by § 113(f)(2). Q.E.D.

In the order on interlocutory appeal, the district court did not dwell on the question whether the Rumpke suit presented claims for contribution, evidently for two reasons. First, it noted that Rumpke's suit was in part based on § 107(a) of the Act, which provides for private cost recovery, rather than contribution. It acknowledged that Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761 (7th Cir.1994), held that claims by one potentially responsible party (PRP) (here, Rumpke as present landowner) against another (here, the Cummins group) must normally be brought as contribution claims under § 113(f)(1), but it noted that Akzo also recognized an exception to that rule. Under the exception, a landowner may bring a § 107 action to recover for its direct injuries "if the party seeking relief is itself not responsible for having caused any of the hazardous materials to be spilled onto the property." Rumpke of Indiana, Inc. v. Cummins Engine Company, Inc., No. IP 94-1636-C at 1 (S.D.Ind. May 23, 1995). The court found that it was factually uncertain whether Rumpke was entitled to invoke the Akzo exception, and it accordingly denied summary judgment for the Cummins group on that point. Second, the court knew that Rumpke's complaint also asserted, in Count II, an express claim for contribution under § 113(f)(1). Thus, recognizing that the case at least for Count II raised a contribution claim, the court's order proceeded immediately to the question whether the Seymour settlement resolved all potential liability of the Cummins group with respect to the Uniontown site.

Construing the language of the Seymour decree as a whole, the court found that it dealt only with the Seymour site. It noted that nothing else in the decree, apart from the excerpt from section XII quoted above, contained even a hint of an attempt to resolve future disputes caused by the trucking of waste from Seymour to other locations. CERCLA and the Superfund Amendments and Reauthorization...